From the ABA Journal:
The ABA House of Delegates on Monday voted in favor of amending Rule 7 of ABA Model Rules of Professional Conduct, which addresses lawyer advertising.
Lucian Pera, of Adams and Reese in Memphis, Tennessee, and chair of the Center for Professional Responsibility, told delegates that in the decades since the 1977 U.S. Supreme Court decision in Bates v. State Bar of Arizona allowed for lawyers to advertise their services, there’s been a “breathtaking variation in advertising rules” among states. He said the amendments were necessary to clarify and simplify these rules.
Resolution 101 amends Rules 7.1-7.5, and was informed 2015 and 2016 reports by the Association of Professional Responsibility Lawyers. The Standing Committee on Ethics and Professional Responsibility worked on the edits over the course of two years, holding at least two open hearings. A detailed article on their work is available here.
No one rose to oppose the amendment, and the majority of delegates voted in favor of the amendments.
For those of you teaching PR during 2018-2019, you may wish to advise your students regarding the appearance of revised rules on the MPRE. Here is the position of the NCBE as posted on its website:
Amendments to the ABA Model Rules of Professional Conduct or the ABA Model Code of Judicial Conduct will be reflected in the examination no earlier than one year after the approval of the amendments by the American Bar Association. Until that time, the examination may include questions that test on the rules before amendment.
Relevant to Chapter 3: see ASSOCIATION OF PROFESSIONAL RESPONSIBILITY LAWYERS 2015 REPORT OF THE REGULATION OF LAWYER ADVERTISING COMMITTEE . The opening paragraph of the Executive Summary states: “The rules of professional conduct governing lawyer advertising in effect in most jurisdictions are outdated and unworkable in the current legal environment and fail to achieve their stated objectives. The trend toward greater regulation in response to diverse forms of electronic media advertising too often results in overly restrictive and inconsistent rules that are under-enforced and, in some cases, are constitutionally unsustainable under the Supreme Court’s Central Hudson test. Moreover, anticompetitive concerns, as well as First Amendment issues, globalization of the practice of law, and rapid technology changes compel a realignment of the balance between the professional responsibility rules and the constitutional right of lawyers to communicate with the public. ……
Based on the survey results, anecdotal information from regulators, ethics opinions, and case law, the Committee 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. The Committee believes that state regulators should establish procedures for responding to complaints regarding lawyer advertising through non-disciplinary means. Professional discipline should be reserved for violations that constitute misconduct under ABA Model Rule 8.4(c).3 The Committee recommends 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.
When I teach lawyer advertising and solicitation, I often pose the following hypothetical to my students: Is the use of social media like Facebook to reach potential clients permissible solicitation under the precedent of In re Primus (where the Supreme Court held that North Carolina could not bar an ACLU attorney from holding gatherings to inform women about their civil rights after they had been sterilized on condition of receiving public medical benefits) and Ohralk v. Ohio State Bar Association (decided the same day as Primus, with the Supreme Court holding that an ambulance chaser could be barred from soliciting clients at the hospital bedside). My hypothetical is now a reality–from Bloomberg News comes this article on how law firms are using Facebook to solicit medical victims (h/t Professor Elizabeth Tippett of Oregon Law, whose scholarship focuses on lawyer advertising and marketing, among other topics).
For ambulance chasers, persistence and a phone book just don’t cut it anymore. Law firms, which once relied on television commercials, billboards, and cold calling numbers in the white pages to find plaintiffs for medical lawsuits, have begun to embrace technology. To locate their ideal pharma victims more quickly and at lower costs, they’re using data compiled from Facebook, marketing firms, and public sources, with help from digital bounty hunters like Tim Burd.
Teaching attorney advertising? This clip from attorney Stephen L. Snyder is a great conversation-starter. You might show it immediately before or after discussing Matter of Zang, page 201. “Wherever justice and large jury awards are needed, Snyderman won’t be far away!”