On August 6, 2018, the ABA House of Delegates adopted a resolution from its Standing Committee on Ethics and Professional Responsibility to amend the lawyer-advertising provisions of the ABA Model Rules of Professional Conduct. See ABA Resolution 101 (Revised) as Adopted (Aug. 6, 2018). The amendments modernize model rules that have been in place for decades.
In a memorandum accompanying the draft, the Standing Committee on Ethics and Professional Responsibility (“Committee”) noted that its proposals were intended to “streamline and simplify” the rules and to permit lawyers “to use new technologies that can inform consumers accurately and efficiently about the availability of legal services.” See Barbara S. Gillers, Memorandum in Support of Working Draft of Proposed Amendments to ABA Model Rules of Prof’l Conduct on Lawyer Advertising at 2 (Dec. 21, 2017). The Committee recommended, and the House of Delegates adopted, amendments that accomplish the following:
- Combining and consolidating existing rules into a single prohibition against false and misleading communications (including standards governing firm names and designations). See ABA Model Rule of Prof’l Conduct r. 7.1, cmts. 5-8 (Aug. 6, 2018).
- Revising provisions that required publication of a lawyer’s “office address” to now require “contact information.” See id. r. 7.2(d). Comment 12 clarifies that “contact information” includes “a website address, a telephone number, an email address or a physical office location.” Id. cmt. 12.
- Permitting lawyers to give “nominal gifts as an expression of appreciation” that are “neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.” See id. r. 7.2(b)(5). Comment 4 clarifies that this new rule “permits lawyers to give nominal gifts as an expression of appreciation to a person for recommending the lawyer’s services or referring a prospective client. The gift may not be more than a token item as might be given for holidays, or other ordinary social hospitality. A gift is prohibited if offered or given in consideration of any promise, agreement or understanding that such a gift would be forthcoming or that referrals would be made or encouraged in the future.” Id. cmt. 4.
- Defining and clarifying solicitation rules. First, the new rule defines “solicitation” or “solicit” as “a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.” Id. r. 7.3(a). Second, the rule prohibits “live person-to-person contact.” Id. r. 7.3(b). The comment clarifies that “’live person-to-person contact’ means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard.” Id. cmt. 2. Third, the revised rule permits live person-to-person solicitation of a “person who routinely uses for business purposes the type of legal services offered by the lawyer.” Id. r. 7.3(b)(3). The comment clarifies that this includes persons who “routinely hire outside counsel to represent the entity; entrepreneurs who regularly engage business, employment law or intellectual property lawyers; small business proprietors who regularly routinely hire lawyers for lease or contract issues; and other people who routinely regularly retain lawyers for business transactions or formations.” Id. cmt. 5.
- Eliminating the labeling requirement (“ADVERTISEMENT”) for targeted mailings, but prohibiting such mailings that are misleading or that involve coercion, duress or harassment. See id. r. 7.3(c). The comment clarifies that “person-to-person contact of individuals who may be especially vulnerable to coercion or duress is ordinarily not appropriate, for example, the elderly, those whose first language is not English, or the disabled.” Id. cmt. 6.
Should Louisiana Follow Suit?
Yes. In 2008, the Louisiana Supreme Court adopted some of the most complex and indecipherable advertising rules in the country. Have these rules—which were the subject of costly federal litigation ultimately funded by us (Louisiana lawyers)—proven to be worth it? To rip off an old campaign speech, it might be well if we would ask ourselves this: Are we better off now than we were ten years ago? Are prospective clients better informed? Are lawyers’ advertisements “better”? Are Louisiana lawyers more respected?
In my view, the answer to all of these questions is “no.” As APRL, other state bar associations, and now the ABA have begun to recognize, lawyer-advertising regulations should simply ensure that lawyers don’t deceive or coerce prospective clients. Those laudable goals are best accomplished with simple rules prohibiting false and misleading communications, and prohibiting in-person solicitation. For that reason, the labyrinthine regulations contained in the current Louisiana rules should be revised.