• ABA’s Ethics Committee tried to “encourage national uniformity and simplify the rules
• Committee tried to acknowledge real-world practices and to avoid dating the rules
Tweaks to the ABA’s Model Rules governing attorney advertising seek to strike a “good balance” of competing views, Barbara Gillers, chair of The ABA’s Standing Committee on Ethics and Professional Responsibility, said in an online forum Mar. 28.
The proposed changes attempt to modernize and simplify the rules to reflect changes in technology and real-world practices. The committee also seeks to alleviate the burden on regulators, while protecting the public and increasing access to justice.
Next the committee’s proposal will be submitted as a report and resolution to the ABA House of Delegates, and then will be presented to the House of Delegates at the ABA’s annual meeting in August.
What Might Change?
But the committee proposed that current Rule 7.5, along with its comments addressing the use of firm names and letterhead, be added to the comments of Rule 7.1. The provisions in Rule 7.5 also prohibit misleading statements, so the committee tried to combine these prohibitions in one place.
And nominal gifts, described by Tarbert as “thank you for thinking of me” gifts, are allowed in the proposed changes, along with taking someone out for a meal to thank them. The committee acknowledged such “ordinary social hospitality” occurs in the real world.
Tarbert said the prohibition on paying for recommendations is an example of a provision that some groups, including lawyer matching service Avvo, thought should be omitted altogether.
The in-person solicitation exception for an “experienced user” was clarified to apply to in-house counsel and small business owners who regularly engage lawyers.
In addition, the committee found no evidence that labeling direct mail as “advertising material” helps protect consumers, especially given all the unsolicited mail people get, so that requirement was removed.
Hot Button Issues
The committee solicited and received comments about its working drafts. Some of the most debated issues included, as reflected in the committee’s powerpoint:
Gillers, an adjunct ethics professor at New York University School of Law, said the committee would consider “in the near future” issues regarding referral services, which involve an analysis of additional ethics rules.