May 16 — The ABA should get rid of its model ethics rule against lawyers' solicitation of potential clients through most forms of “real-time electronic contact” and also should authorize in-person solicitation of sophisticated legal services users, the Association of Professional Responsibility Lawyers recommended in its second report on regulation of lawyer advertising and solicitation.
The current ban on real-time electronic contact—which restriction most states have adopted—isn't justified except for communications that closely resemble live telephone calls, such as Skype and FaceTime, according to the new report.
APRL issued a far-reaching report last year saying the ABA should eliminate most of its model rules on lawyer advertising, leaving a single rule against false or misleading statements. It also urged states to deal with complaints about lawyer advertising through nondisciplinary means in most cases. See 31 Law. Man. Prof. Conduct 376; 31 Law. Man. Prof. Conduct 469.
The group explained its latest proposals in an April 26 “Supplemental Report” from its Regulation of Lawyer Advertising Committee. The organization's board of directors has approved the supplemental report, and it's now posted on APRL's website.
APRL's current president, Lynda C. Shely of Scottsdale, Ariz., said reaction to APRL's original report has been encouraging. “We’ve received very positive feedback from several ABA entities as well as individual NOBC [National Organization of Bar Counsel] members and some state supreme court justices,” she said.
Committee Chair Mark L. Tuft told Bloomberg BNA that APRL is looking for feedback on the committee's supplemental report and proposal before asking the ABA to consider it. Tuft is a partner with Cooper, White & Cooper LLP in San Francisco.
The two reports make up APRL’s recommendations for updating the ABA Model Rules of Professional Conduct that regulate lawyers' advertising and solicitation, Shely said.
She said APRL will gather suggestions from all interested ABA entities, NOBC members, the Conference of Chief Justices, state bars and other interested entities over the next six months.
“If there are any revisions to the recommendations, based upon the input, we’ll circulate a final draft after the August meetings,” Shely said.
APRL doesn't have a definite schedule for asking the ABA to consider the proposals.
Shely said a general timetable is to meet in August with ABA Center for Professional Responsibility committees along with ethics committees from other ABA sections and divisions, to seek their input. Then APRL hopes that several ABA entities may submit the final proposals to the ABA House of Delegates in 2017, she said.
To get the word out about APRL's proposals, Shely and Tuft will be participating in a panel on lawyer advertising June 2 at the 42nd ABA National Conference on Professional Responsibility in Philadelphia.
The proposals will be discussed Aug. 5 at APRL's annual meeting in San Francisco, and Shely said she'll take part in a panel discussion of lawyer advertising the same day at the National Conference of Bar Presidents annual meeting, also in San Francisco.
Dennis A. Rendleman, ethics counsel for the ABA Center for Professional Responsibility, told Bloomberg BNA the ABA Standing Committee on Ethics and Professional Responsibility has received a presentation on the original report and likely will get another one concerning the supplement.
Here's how ABA Model Rule 7.2(b) (“Solicitation”) would read if APRL's recommendation is accepted:
“(b) Except as provided in paragraphs (c) and (e), a lawyer shall not solicit in person by face-to-face contact or live telephone, or permit employees or agents of the lawyer to solicit in person or by live telephone on the lawyer's behalf, professional employment from a prospective client when a significant motive for doing so is the lawyer's pecuniary gain, unless the person contacted:
“(1) is a lawyer;
“(2) is a sophisticated user of legal services;
“(3) is pursuant to a court-ordered class action notification; or
“(4) has a family, close personal, or prior professional relationship with the lawyer.”
Rendleman said his understanding is that APRL plans to combine the supplemental report with the original proposal after receiving comments and possibly making revisions based on the responses.
When APRL decides on final recommendations, the ABA ethics committee will put them on its agenda and consider amendments to the Model Rules, he said.
The soonest the House of Delegates would consider these proposals is August 2017—“and that would probably be optimistic as this is such a major revision and many states are strongly vested in this type of regulation,” Rendleman said.
Tuft said about the supplemental report that the APRL committee concluded that “the legitimate regulatory objectives of preventing overreaching and coercion by lawyers who use in-person and targeted communications with the primary motivation for pecuniary gain can best be achieved by streamlining the provisions of Model Rules 7.2 and 7.3 in a single rule.”
“The proposed Rule 7.2 provides a clearer definition of solicitation and distinguishes solicitations that are prohibited from those that are permitted with appropriate protections,” Tuft said. The ban on solicitation should be limited to direct face-to-face and live-telephone contacts with prospective clients, he said.
The proposed rule expands existing exceptions to the prohibition on direct in-person solicitation to include sophisticated users of legal services and persons contacted by court-ordered class action notification, he noted.
Tuft pointed out that even with these changes in-person and targeted communications would still have to comply with the prohibition against false and misleading statements in proposed Rule 7.1 and the protections set out in Model Rule 7.3(b), which are carried forward into APRL's proposed Rule 7.2. Rule 7.3(b) prohibits solicitation involving coercion, duress or harassment and solicitation of anyone who has made known to the lawyer a desire not to be contacted.
APRL's proposed Rule 7.2 also carries forward the protections in existing Model Rule 7.2(b) on giving anything of value to anyone for referring clients and provisions in Model Rule 7.2(d) pertaining to lawyer referral services, Tuft said.
APRL's proposed Rule 7.2 would continue the current requirements for marking targeted mailings as “advertising material,” and would make clear that lawyers may pay for online group advertising.
“The APRL report is absolutely right to recommend eliminating the model rules’ ban on ‘real-time electronic contact,'”Greg Beck told Bloomberg BNA.
Beck, of Washington, D.C., has litigated numerous free-speech challenges to lawyer advertising rules.
Beck said the prohibition on real-time electronic contact is based primarily on Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), which was decided before the Supreme Court established the test for evaluating commercial speech restrictions in Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
Beck said the Supreme Court in Ohralik upheld discipline under the worst possible facts: the lawyer solicited employment from an accident victim who was lying in traction in a hospital room.
As the court later made clear in Edenfield v. Fane, 507 U.S. 761 (1993), Ohralik is limited to the holding that in-person solicitation may constitutionally be banned under circumstances that pose similar dangers of overreaching, he said.
“Online solicitations are closer to written communications than to the kind of solicitation the Supreme Court was concerned about in Ohralik, Beck said. “There is no danger of overreaching with an online communication that a potential client can simply turn off at any time,” he said.
Beck pointed out that many law firm websites have chat features allowing potential clients to ask questions and get more information. These are potentially useful to consumers, not dangerous to them, he said.
“Even the ban on in-person solicitation is probably unconstitutional in many contexts where there is no inherent risk of coercion or overreaching,” Beck said.
Beck noted that the APRL report recognizes one of them—when the solicited consumer is a sophisticated consumer of legal services.
There also are situations where any risk of overreaching is probably outweighed by the benefit to the consumer, such as solicitation of unrepresented litigants at a courthouse, according to Beck.
“Rather than carving out exceptions to a blanket prohibition, it would be better to prohibit in-person solicitation only in circumstances that involve coercion, intimidation or overreaching,” Beck said. “In that respect I would say that APRL’s recommendation does not go far enough.”
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