Last year I did one of those year-in-review posts on lawyer marketing and regulatory reform. I wrote about the amendments to the ABA Model Rules of Professional Conduct governing advertisements and solicitations. I wrote about the formation of the California Task Force on Access Through Innovation. I threw in a few instances of lawyers advertising in goofy, and perhaps unethical, ways. I thought I’d do the same thing this year, but the thing is almost nothing really changed in 2019.
BUT don’t stop reading, because sometimes nothing is more important than something.
What didn’t happen is, in fact, significant and hopefully a call to action.
What Didn’t Happen
Let’s start with the ABA Model Rules. In August 2018, the House of Delegates passed changes designed to stress the importance of prohibiting false and misleading communications while stripping out some of the housekeeping requirements, like the obligation to label brochures as “Advertising Material.”
The ABA wanted to create a set of rules that every state would adopt and therefore establish a uniformity that would better enable multistate marketing. According to the report accompanying the resolutions:
“In lawyer advertising … a dizzying number of state variations exist. This breathtaking variety makes compliance by lawyers who seek to represent clients in multiple jurisdictions unnecessarily complex, and burdens bar regulators with enforcing prohibitions on practices that are not truly harmful to the public.”
We might have expected that 2019 would see many states embrace these changes and their high courts signing off on the rules virtually verbatim. Didn’t happen, though. According to my count, one state adopted the Model Rule changes. In the year 2020, some states continue to prohibit testimonials, some prohibit trade names, and several require various forms of disclaimers and disclosures. In 2020, more states have rules governing communications via telegrams than have adopted the current version of the ABA Model Rules. Telegrams, by the way, ended in 2006. Let’s hope many states are working toward a version of the Model Rules and will get there soon.
What Almost Happened – and Might Still
A small group of states has begun to tackle regulatory reform and some believe this is a trend that several other states will follow. These efforts include lawyer advertising among the issues being addressed, but policies specific to lawyer advertising were, generally, works in progress at the end of 2019. The report from the California Task Force on Access Through Innovation of Legal Services includes a recommendation to revise the advertising rules but does not yet set out any specifics other than to consider changes recommended by the ABA, the Association of Professional Responsibility Lawyers and other states. Likewise, a report from the Utah Working Group on Regulatory Reform notes that the Utah Supreme Court’s Advisory Committee on the Rules of Professional Conduct is examining the advertising policies there.
Entities in other jurisdictions have moved further and made preliminary recommendations to amend, and in some cases eliminate, some of the current rules governing advertising. The Arizona Supreme Court Task Force on the Delivery of Legal Services has not only recommended bold changes to its ad rules, but also rules involving law firm ownership. Similarly, a proposal from the Chicago Bar Foundation would focus on the prohibition of false or misleading communications and exclude all of the housekeeping provisions directed toward advertising.
The Institute for the Advancement of the American Legal System (IAALS) has created a website, the Unlocking Legal Regulation Knowledge Center, that tracks the development of these changes.
What Did Happen
It seems impossible that a year could go by with nothing happening. So here are a few notable developments from 2019. None of these developments are in tune with regulatory reform but instead impose further limitations.
- The South Carolina Supreme Court amended the comment to Rule 1.6 of its Rules of Professional Conduct to require lawyers to obtain informed consent from their clients when using information about cases in their advertisements — even if the information is already publicly available.
- The legislatures in Texas and Tennessee passed bills aimed at lawyer ads regarding prescribed medication and medical devices. The laws require a host of disclaimers and disclosures, including a provision that requires ads to begin with the statement, “This is a paid advertisement for legal services.” Texas provides for a civil penalty of $20,000 for each violation, while Tennessee law makes a violation a crime and provides for a civil remedy.
Looking Forward … and Stepping Off the Sidelines
I have a cat who, when he is thirsty, will simply sit by his water bowl waiting for someone to fill it. I’ve seen videos of cats opening a faucet to get a drink. (And I’m pretty sure my cat could do that if he wanted to. After all, he takes naps in the sink.) So, 2019 was a year of staging — a year of starts with few conclusions.
Those who want to market in ways that are less encumbered by state ethics rules need to think about what they can do in 2020. First, we have to realize this is a long game. The ABA’s hope for uniformity among state marketing and advertising rules may never be realized, but it can be advanced. For those in states that have not yet moved forward, you can begin a conversation with your bar association and your court to encourage the rules be amended, using the ABA Model Rules as a starting point, for example. In states where rule changes are actively under consideration, you can submit comments and encourage others to do so.
Whatever you do, please don’t be that cat that just sits by the water bowl waiting for something to happen.
- In addition to its Unlocking Legal Regulation Knowledge Center, the Institute for the Advancement of the American Legal System (IAALS) maintains a comprehensive list of links to legal ethics resources and regulations.
- Read Will Hornsby’s posts on Attorney at Work, here.