The American Bar Association has amended Model Rule 7 of the ABA Model Rules of Professional Conduct, which regulates attorney advertising. The Supreme Court allowed attorney advertising in Bates v. State Bar of Arizona in 1977, and states have regulated attorney advertising in a large variety of ways for four decades.
The newly amended Model Rule 7 was tweaked over the course of two years in the hope of unifying attorney advertising rules across the country, according to Lucian Pera, chair of the Center for Professional Responsibility.
The new Model Rule 7 regulates “communications” by an attorney about its services by any means. This is a more encompassing term than “advertisement” and better fits the many ways attorneys make statements about the services they offer in the modern world. As always, communications about a lawyer’s services must be truthful and must not be misleading.
Additionally, in response to the growing popularity of virtual law firms, the new Model Rule 7 recognizes that “contact” may be made via e-mail, chat or text messaging, and other means of immediate electronic communication. The amended rule no longer requires an address to a physical office, but instead requires all communications about a lawyer’s services to include the name and contact information of the lawyer or law firm. The contact information can be in the form of the traditional physical address or a website address, phone number, or email address.
The important dichotomy between communications about an attorney’s services and solicitations still exists. Live person-to-person solicitations are still prohibited under the new Model Rule 7. While this does not include written communications that recipients may easily disregard, the amended rule does prohibit solicitations made in-person, over the phone, or via live visual or auditory person-to-person communication.
Under the new Model Rule 7, attorneys will also have more leeway to provide nominal thank you gifts for referrals and to state that they “concentrate on” or “specialize in” a certain area of the law. Plus, targeted mailings will no longer have to be labeled as “Advertising” – since the requirement only encouraged a recipient to disregard the letter as junk mail.
The new Model Rule 7 does not change any regulations on attorney advertising today, but the amendment may impact attorney advertising in the future as states update their Rules of Professional Conduct to reflect the new model. Micah Buchdahl of Law Practice Today suspects that many states will adopt the amended Model Rule 7 with their own revisions based on unique state considerations. Buchdahl also predicts that the goal of uniform adoption and enforcement nationwide is unlikely to be achieved, particularly in the area of “lawyer referral services.”
Others have been overtly critical of the amended rule for not going far enough. Josh King, the former Chief Legal Officer at Avvo, suggests the amended rule is too vague and does not address the attorney advertising problems that are rampant today. For example, as Buchdahl predicted, the amended rule’s definition of “lawyer referral services” is a hot topic. Carolyn Elefant, of MyShingle.com, a blog that helps lawyers start their own solo or small firm, offers pointed criticism that the new definition of “attorney referral service” does not actually provide attorneys with the ethical guidance and clarity that they so desperately need in this area.
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