ABA’s Lawyer Advertising Rule Revamp Aims for ‘Right Mix’

Half Price Lawyers sign. (Photo by: Jeffrey Greenberg/UIG via Getty Images)

• 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? 

Some of the key proposed changes to the ABA’s Model Rules on Professional Conduct include, as summarized in the committee’s powerpoint:

* Rule 7.1 addresses communications about a lawyer’s services and prohibits false or misleading statements. Committee member Elizabeth Tarbert, Ethics Counsel for the Florida Bar, described this rule as the “cornerstone” of advertising regulation. The rule itself was not changed.

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.

* Rule 7.2, formerly called “Advertising,” was renamed “Communications Concerning a Lawyer’s Services: Specific Rules.” The rule still says a lawyer can advertise and the prohibition on paying someone to recommend a lawyer remains. The changes clarify that the prohibition on paying for a recommendation does not apply to lawyers and employees who recommend a lawyer from the same firm.
* Another proposed change is that the provisions under current Rule 7.4 about lawyers identifying themselves as “specialists” were moved to Rule 7.2(c). Under those provisions, lawyers can’t imply they’re specialized unless they’re certified by an organization accredited by the ABA or approved by the relevant jurisdiction.

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.

* For Rule 7.3, which restricts in-person solicitation for monetary gain, the committee added a definition of “solicitation.” And the proposed changes to the comments clarify that live person-to-person contact includes talking via Skype or Facetime, but not via a chat room or text. Committee member Lynda Shely, a professional responsibility lawyer in Arizona, said written written messages like text messages can be “readily disregarded.”

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:

* nominal “thank you for thinking of me” gifts being allowed
* the “experienced user” exception to the in-person solicitation rule
* elimination of the requirement to put an “advertising material” label on targeted mail
* elimination of a separate rule for law firm names
* whether the proposed changes went “far enough” to relax “unnecessary restrictions”

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.