Lawyers’ obligations regarding ethical marketing practices are among the most misunderstood and misconstrued aspects of the ABA Model Rules of Professional Conduct (the “ABA Model Rules”). While this has long been the case, over the past two decades, questions regarding lawyers’ compliance obligations have largely focused on issues related to internet marketing, including marketing on social media. As succinctly stated by Michael Buchdah, moderator of the ABA’s Ethics Dos-and-Don’ts for Lawyer Marketing & Advertising in 2019 webinar:
“The original rules were geared to some of the old-time concepts like the Yellow Pages, billboards, print ads and directories. . . . But those are no longer relevant in today’s marketplace of cellphones, internet and social media.”
Due to these concerns, the ABA recently updated the Model Rules of Professional Conduct. The updates made significant changes to Rules 7.1, 7.2 and 7.3 while eliminating Rules 7.4 and 7.5 in their entirety. In large part, the changes are designed to broaden the scope of the ABA Model Rules’ attorney advertising provisions while providing additional guidance regarding what is, and is not, permissible. According to Buchdah, the core concepts embodied in the updated ABA Model Rules are prohibitions on false, deceptive and misleading communications.
“They won’t protect you 100 percent of the time, but if you ask yourself whether or not the advertising is false or whether it’s deceptive or whether it’s misleading, you’re usually going to be good to go.”
The 2018 updates to the ABA Model Rules did not impact the language of Rule 7.1 itself, but rather significantly modified the Comment. The ABA removed the old rule’s provision regarding disclosure of costs along with attorneys’ fees and added several provisions to clarify when specific types of communications are considered “false or misleading,” as prohibited by Rule 7.1. These additions include provisions regarding firm names, letterhead and professional designations that replace the language of the old Rule 7.5.
The ABA renamed Rule 7.2 and revised it to apply to communications in “any media” (as opposed to “written, recorded or electronic communication, including public media”), and its prohibition on referral fees has been broadened by the deletion of the clause that previously limited Rule 7.1(b) to referral fees paid to a person, “who is not an employee or lawyer in the same law firm.” Rule 7.2 now also includes provisions regarding “certification” and “specialization,” which are simplified versions of the provisions that appeared in the old Rule 7.4.
Rule 7.3 has been revised to establish the definitions of “solicitation” and solicit” in new Rule 7.3(a) and to make the rule apply to all “live person-to-person contact.” The Comment has also been substantially revised in an effort to provide additional clarity regarding when live person-to-person solicitation is and isn’t permitted.
The revisions to the ABA Model Rules are intended to modernize and clarify lawyers’ professional obligations in today’s digital environment. While the Model Rules are not binding on attorneys, many states have enacted the Rules in some form. Since the revisions are likely to impact your practice, it is a good idea to keep them in mind as you head into 2020.