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June 26 — The ABA should get rid of most of its model rules on lawyer advertising, leaving a single rule against false or misleading statements, and states should deal with complaints about lawyer advertising through nondisciplinary means in most cases, the Association of Professional Responsibility Lawyers recommends in a report released June 22.
APRL explained these far-reaching proposals in a task force report titled the “2015 Report of the Regulation of Lawyer Advertising Committee,” which the organization's board of directors approved for publication and is now posted on APRL's website.
Committee chair Mark L. Tuft told Bloomberg BNA that “APRL would like to persuade people we need to take a hard look at the regulation of lawyer advertising.” He is a partner with Cooper, White & Cooper LLP in San Francisco. “This is not just a white paper,” Tuft said.
Tuft said that although there's no timetable or exact plan for asking the ABA to consider the proposals, APRL is eager to hear people's reactions to the report. Comments may be submitted through APRL's Facebook page or by e-mail to firstname.lastname@example.org.
Tuft said APRL will be proactive in airing the report. “We're looking for feedback, and we'll reach out to all interested stakeholders,” including not only the ABA, National Organization of Bar Counsel and state regulators but also probably the Federal Trade Commission and the Conference of Chief Justices, he said.
• in-person solicitation, which is covered by ABA Model Rule 7.3;
• truthful advertising through means that may be oppressive, such as targeted ads in the wake of a disaster; and
• marketing that conflicts with regulation of lawyer referral services.
The committee will continue its work and tackle those subjects in due course, Tuft said.
Tuft told Bloomberg BNA the report proposes two solutions.
One is to eliminate three of the five ABA Model Rules of Professional Conduct (Rule 7.2 on “Advertising,” Rule 7.4 on claims involving fields of practice and specialization and Rule 7.5 on law firm names), leaving only Model Rule 7.1, which prohibits false and misleading communications about a law firm's services, and (for now, at least) Model Rule 7.3 on in-person solicitation.
This approach—a single rule against false and misleading communications—gets to the heart of what should be subject to enforcement through the disciplinary process, Tuft said.
APRL's other suggested solution is for bar regulators to deal with complaints about lawyer advertising through nondisciplinary means unless the communication violates the prohibition in Model Rule 8.4(c) against dishonesty, fraud, deceit or misrepresentation.
In other words, Tuft explained, discipline should not be the first choice for correcting or remedying problems with lawyers' advertisements. Some states already use this approach, he said.
Tuft noted that the committee surveyed state bar regulators, asking how advertising rules are being enforced and who's complaining about lawyers' advertisements. (The questionnaire is included as an attachment to the report.)
Out of 51 jurisdictions, 36 responded. Tuft said the responses confirmed that in most jurisdictions lawyer advertising is a low-level enforcement activity; most complaints come from other lawyers rather than clients or potential clients; and consumers are sophisticated about electronic advertising and not buffaloed by lawyers' ads.
Tuft said APRL is not trying to undermine regulators' ability to enforce advertising rules. “We believe that enforcement is currently not effective and the rules should be realigned to reflect modern practice and the realities of electronic media advertising,” he said.
Even for those who disagree with APRL's conclusions and recommendations, Tuft said, the report will be useful in a couple of ways. First, he said, “the survey data is quite important and revealing, and is useful in discussing the profession's role in regulating lawyer advertising.” Second, Tuft said the report does a good job describing the problems that need solutions in regulating lawyer advertising.
Another committee member, Lynda C. Shely, Scottsdale, Ariz., told Bloomberg BNA she's optimistic that others will embrace the proposals once APRL engages in substantial outreach to ABA groups, regulators, the Conference of Chief Justices and bar associations.
“I'm hopeful we can get some revisions that will address reality, not violate the Constitution, not present antitrust issues and still protect the public from false and misleading advertising,” Shely said.
Shely said the report doesn't suggest eliminating the part of the rules that should be enforced—the prohibition against false and misleading advertising—but rather proposes ditching the “nit-picky stuff.” Bar associations and regulatory bodies don't want to spend member dues or supreme court budgets telling lawyers to put street addresses in their ads, she said.
“This is a more realistic approach that absolutely still protects the public,” Shely said.
Don't look for APRL's suggested revisions to show up in the Model Rules anytime soon, however.
It's way past the filing deadline to put items on the agenda for the ABA House of Delegates meeting this August, according to Dennis Rendleman, the ABA Center for Professional Responsibility's ethics counsel who served as the center's liaison to the APRL committee in its study of the regulation of lawyer advertising.
In an interview with Bloomberg BNA, Rendleman noted that the ABA Standing Committee on Ethics and Professional Responsibility would be the ABA entity with jurisdiction to consider and recommend any proposed changes to the Model Rules.
Other ABA groups that might have an interest in APRL's proposals, such as the Standing Committee on Professional Discipline, would have an opportunity to weigh in on any proposed changes, he added.
Rendleman said he expects APRL's report to generate broad discussion—and plenty of it. He pointed out that the rules governing information about legal services are those where state rules depart the most from the Model Rules. It's no secret that some jurisdictions are parochial in their rules on lawyer advertising, he stated.
According to National Organization of Bar Counsel President Tracy L. Kepler, the APRL report has only recently been circulated to the entire NOBC membership.
NOBC had a role in the report through James C. Coyle, who was a liaison to the APRL committee and “was a strong presence in the direction of the report,” Kepler told Bloomberg BNA. Kepler is with the Office of the Solicitor in the U.S. Patent & Trademark Office in Alexandria, Va.
Coyle is regulation counsel for the Colorado Supreme Court. He was unavailable to comment for this article.
The APRL report will be discussed at the July 31 joint NOBC/APRL session in Chicago, Kepler said. “I expect an endorsement or suggestions for revisions from the NOBC to follow that session,” she said.
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APRL's 2015 Report of the Regulation of Lawyer Advertising Committee concludes that current regulations addressing lawyer advertising are unworkable, with an increasingly complex array of inconsistent state rules that fail to deal with evolving technology and innovations in the delivery and marketing of legal services.
Lawyer advertising rules in most jurisdictions are overly restrictive, not uniformly enforced and present First Amendment and antitrust concerns in restricting the communication of accurate and useful information to consumers of legal services, the committee found. It grounded these conclusions on its own survey of enforcement practices and a review of cases, rules and ethics opinions, along with anecdotal information from regulators.
The report concludes that “the practical and constitutional problems with current state regulation of lawyer advertising far exceed any perceived benefits associated with protecting the public or maintaining the integrity of the legal profession, and that a practical solution to these problems is best achieved by having a single rule that prohibits false and misleading communications about a lawyer or the lawyer's services.”
In particular, the report recommends ditching the ABA models on advertising (Model Rule 7.2), fields of practice and specialization (Model Rule 7.4) and law firm names (Model Rule 7.5), and retaining Model Rule 7.1 along with some of the comments to the deleted rules.
The committee also suggested that “violations of an advertising rule that do not involve dishonesty, fraud, deceit, or misrepresentation under Rule 8.4(c) should be handled in the first instance through non-disciplinary means, including the use of advisories or warnings and the use of civil remedies where there is demonstrable and present harm to consumers.”
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