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 seven years ago? Are clients better informed? Are lawyers advertisements “better”? Are lawyers more respected?
The ABA Commission on the Future of Legal Services is now critically evaluating the manner in which legal services are delivered in the United States. In response to the Commission’s “Issues Paper” calling for suggestions for improvement, Avvo.com—a leading online legal services marketplace—submitted some remarkably cogent thoughts. In a December 2014 memorandum, Avvo argues that the American legal profession is not effectively delivering legal services for two fundamental reasons, “one stemming from a lack of lawyer training and one stemming from over-regulation.” See Avvo, Comments Submitted in Response to Issues Paper on the Future of Legal Services (Dec. 20, 2014).
As to “over-regulation,” Avvo contends that the ABA Model Rules on lawyer advertising—which are significantly simpler and shorter than Louisiana’s convoluted rules—are “confusing” and have “a chilling effect on the ability of attorneys to communicate freely with potential clients, each other and the public at large.” Those rules, Avvo says, obfuscate “what should be the overarching goal of the attorney advertising rules: ensuring that consumers aren’t being deceived or misled by members of the bar. That end isn’t achieved by trying to ensure technical compliance with an increasingly lengthy set of rules.” The solution? Simple prohibitions against false and misleading communications and in-person solicitation. And nothing more:
This would leave as the centerpiece of the rules the simple prohibition against false and misleading advertising. It would also preserve the prohibition against what has long been regarded as the single most offensive and oppressive legal marketing tactic: in-person pressure and harassment. But it would eliminate all of the extraneous “noise” that confuses practitioners and regulators alike when trying to apply the rules to new forms of communication and marketing, and allow for clearer focus on those communications that are actually misleading consumers.
Well said Avvo.