ABA House of Delegates Amends Lawyer Advertising and Solicitation Rules (updated with information about MPRE testing)

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.

$890 million in advertising for clients?

From Forbes today comes this, “Lawyers Bump Advertising Spending to $890 Million in Quest for Clients.”

A few highlights:

The phrase “San Antonio car wreck attorney” is the most expensive search string on the Web, at $670 per click, followed by “Accident attorney Riverside CA,” at $626. In fact, 23 of the 25 most expensive search terms involve lawyers and litigation, according to a new survey by the U.S. Chamber’s Institute for Legal Reform, which doesn’t think much of lawyer advertising.

Defying the trend toward declining television advertising spending, lawyers have increased their spending by 68% over the past eight years to an expected $892 million this year, the ILR reports, as law firms seek clients for lawsuits over prescription drugs, medical devices and asbestos.

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The ILR study paints a portrait of an industry that knows where its customers are – often in front of a television set, watching afternoon programs, or searching the web for information about a medical condition – and knows how to get their attention.

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Law firm spending on TV ads has been rising six times faster than overall spending since 2008, the study found.

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Lawyers have also flooded the Internet and social media with their messages, buying search terms and linking up with “influencers” and “Super Tweeters” who write about litigious subjects on Facebook and Twitter.

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The Institute for Legal Reform thinks all this advertising stimulates too much litigation, and the example of pelvic mesh implants may demonstrate their point. But plaintiff lawyers and some academics make exactly the opposite argument: Advertising helps drive more socially useful litigation by people who otherwise might not realize they have a valid claim.

The U.S. Supreme Court has held the First Amendment applies to lawyers, too, noted Anthony Sebok, a professor at Cardozo Law School in New York who writes frequently on the merits of greater involvement in civil litigation. “Big Pharma is doing the same thing as Big Tort,” he noted in an e-mail to me, by advertising directly to consumers in order to prompt them to ask their physicians for prescription drugs. The important distinction is between advertising for potential clients and invading their privacy by directly contacting them after an accident or medical mishap.

“Obviously the line between advertising and solicitation is a hard one to draw, but at no time have the courts worried about the interests of defendants when talking about where to draw the line,” Sebok told me.  “The concern is for the victims of accidents, who shouldn’t be harassed and pressured, and the state’s interest in maintaining the reputation of the legal profession.”

Primus and Ohralik in the Facebook-era

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).

An excerpt:

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 Chapter 3 on Finding & Billing Clients?

If you’re teaching Chapter 3 on Finding & Billing Clients, you (and your students) might enjoy these resources:

1.  Here is an ad from Alexander & Catalano, complete with the “wisps of smoke, blue electrical currents, and special effects” described by Judge Calabresi in Alexander v. Cahill on page 223 of the casebook. (Click the image to play the ad).  2.  This video clip, just out from the recently-formed, British-based law firm (and ABS–alternative business structure–ala the UK’s Legal Services Act) Riverview Law, spoofs the hourly rate.  Riverview operates on a model of exclusively fixed-fee pricing. (Click the image to play the clip).3. Vivia Chen asks whether hourly billings are making lawyers anxious and depressed in this July 2012 article in The Careerist.4. If you don’t know about LawZam yet, check this out…the new lawyer-finding service has been compared to online speed dating. (Click the image to play a promo video).