Before recent changes, ABA Model Rule 7.3 detailed that when a prospective client is known to be in the need of legal services, all written, recorded or electronic communication must be marked “Advertising Material.” Most lawyers across the country know this to be the restriction when advertising in writing, but often have wondered what the distinctions are between an advertisement and a solicitation. Lawyers have further sought clarification of the definition of a known need for legal services. More fundamentally, when a consumer knows they require legal services, why must they be alerted to the fact that they are seeing a legal advertisement?
The recent change to ABA Model Rule 7.3 has eliminated the “Advertising Material” restriction for written materials. In addition, the definition of a solicitation is much improved. These advancements to the rule benefit lawyers and the public. As this amendment trickles down to the state level, the consumers will see more written materials from lawyers. Lawyers, once too afraid to advertise—or was it solicitation?—will now more freely communicate with the public. This is a significant development for access to justice; nearly all studies on access to justice note that additional education of the public is necessary to bridge the justice gap. With the amendments to Rule 7.3, I hope lawyers will expand the topics covered in written advertising materials. The improvement here, however, may be slight. The result may be more written materials that look like roadside lawyer billboards. More public education about contingency fee personal injuries is likely not necessary. Access to justice requires a much more complete education for the public.
However, educating the public by a live person-to-person solicitation, for the most part, remains prohibited, even with Model Rule 7.3’s improved definitions. The primary justification seems to be that this type of contact is fraught with the possibility of undue influence. While this is possible, protecting against a mere possibility comes at a high cost to the public. If person-to-person contact was permitted, once a legal problem of any type became known to lawyers, an army of them could undertake the task of educating the public about their services. Frankly, the chance for an immediate pecuniary gain would be the motivator.
As required by Rule 7.1, this army of lawyers must not engage in behavior that is false or misleading. The legal profession’s concern about the private importuning of a trained advocate is arrogant. A savvy public with open access to information, as never before, is given too little credit. Even so, the current construct incidentally exposes consumers to trained hucksters such as telemarketers, fly-by-night web sites and other person-to-person “lead generators,” and not to lawyers who are sworn to protect the public. This is a poor choice. Whole industries have arisen generating leads for lawyers. These are leads that lawyers buy and then pass the cost onto the client. Access to justice suffers because lawyers cannot freely and directly speak to a public desperately needing help.
With lawyers paradoxically restricting their access to the public they serve in the name of ethics, an important access to justice tool remains firmly entrenched in Rule 7.3. Pursuant to section (e) and comment [9] lawyers may participate in a group or prepaid legal service plan. Such plans may engage in person-to-person contact to enroll members who are not known to need legal services in a particular matter covered by the plan. Furthermore, these plans, unlike the hucksters noted above, require lawyer participation to reasonably assure the plan sponsors are in compliance with lawyers’ professional conduct.
A legal plan’s person-to-person contact with consumers is a superpower when it comes to providing access to justice education. When consumers join legal plans, they are educated, both before and as the need for legal services of any kind arises. Education before the immediate need for knowledge is always best. Plan subscriptions come at a fraction of the cost of a traditional law firm and require reduced attorney fees, instead of increased costs for consumers. Lawyers uninvolved with legal plans generally lack the financial incentive to provide this type of education to the public.
While bar associations, courts, legislatures and legal aid foundations have many good ideas when it comes to the education of the public, these ideas all require time and funding, which is apparently scarce as few programs exist beyond helping the indigent. As lawyers and government struggle to solve the access to justice education gap, the legal plans of Rule 7.3 provide the kind of education and services to the public that the access to justice movement desperately needs.
In simple conclusion, the amendment to Rule 7.3 is a small victory for access to justice. Much remains to be done.
About the Author
Wayne Hassay is managing partner of Maguire Schneider Hassay LLP in Columbus, Ohio, and lectures regularly on the non-traditional delivery of legal services. Contact him at whassay@ms-lawfirm.com.