On December 21, 2017, the ABA Standing Committee on Ethics and Professional Responsibility issued a working draft of proposed amendments to the lawyer-advertising provisions of the ABA Model Rules of Professional Conduct. See ABA Standing Cmte. on Ethics and Prof’l Responsibility, Working Draft of Proposed Amendments to Modle Rules 7.1-7.5 (Dec. 21, 2017). In a memorandum accompanying the draft, the committee noted that its proposals are 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 recommends the following:
- Combining and consolidating existing rules into a single prohibition against false and misleading communications (including standards governing firm names and designations).
- Changing provisions that now call for publication of a lawyer’s “office address” to instead call for “contact information,” to recognize “technological advances” as to how a lawyer can be contacted.
- Permitting lawyers to give “nominal thank you gifts” to those who refer clients.
- Permitting live person-to-person solicitation of “experienced users of the type of legal services involved for business matters.”
- Eliminate the labeling requirement (“ADVERTISEMENT”) for targeted mailings, but prohibit such mailings that are misleading, involve coercion, duress or harassment.
The committee has circulated its proposals to state bar associations, the Conference of Chief Justices, the National Organization of Bar Counsel, and the Association of Professional Responsibility Lawyers. It will accept public comment at the ABA midyear meeting in Vancouver in February 2018, and then publish final proposals in spring 2018. Ultimately, the committee hopes to put the proposals up for a vote at the ABA House of Delegates meeting in August 2018.
Should Louisiana Amend Its Advertising Rules?
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 eight 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 reworked.