Ad or Subtract

• Author: Jason Tashea
• Pages: 66-67

66 || ABA JOURNAL JULY 2018

Your ABA

PHOTO ILLUSTRATION BY SARA WADFORD/IUIAGELIKS/SHUTTERSTOCK.COM

Ad or

Subtract

Do proposed changes to

the ABA Model Rules on

ads and referrals go too

far—or not far enough?

By Jason Tashea

As internet technology continues to

present new challenges for legal eth-

ics, older rules regarding advertising

and referrals are being re-examined.

When the ABA Annual Meeting

takes place in Chicago next month,

the House of Delegates will likely

consider changes to Rule 7 of the

ABA Model Rules of Professional

Conduct, which covers how lawyers

can discuss their services, advertise

and solicit new clients. While some

believe the changes proposed by the

Standing Committee on Ethics and

Professional Responsibility are

modernizing, others think they

do not go far enough.

Springing from 2015 and 2016

reports by the Association of

Professional Responsibility Lawyers

that called for modernization of

the rules, the proposed changes

are a “significant philosophical

shift” that will bring the Model

Rules “into the 21st century,” says

Dennis Rendleman, lead senior

ethics counsel in the ABA Center

for Professional Responsibility.

Rendleman hopes the proposed

updates will lead states to standard-

ize lawyer advertising rules, which

he says are inconsistent across

jurisdictions. This standardization

is increasingly important as the

internet renders state boundaries

less relevant, he argues.

The proposed changes aect:

• Rule 1.0, Terminology.

• Rule 7.1, Communication

Concerning a Lawyer’s Services.

• Rule 7.2, Advertising (the

proposed changes would rename

the rule “Communication Concerning

a Lawyer’s Services: Specific Rules”). Continues on page 70

• Rule 7.3, Solicitation of Clients.

• Rule 7.4, Communication of Field

of Practice & Specialization, which is

proposed for deletion while parts are

retained in the rules and comments

of Rule 7.2.

• And Rule 7.5, Firm Names

& Letterhead, which the proposal

deletes and repackages as Comments

6-9 to Rule 7.1.

After a forum at the ABA Midyear

Meeting in Vancouver, British

Columbia, and an open comments

period that ended in March, the

committee revised its proposed

draft reflecting the input.

“There weren’t overwhelming

comments on any of this,” says

Rendleman. Even so, some com-

ments focused on specific changes,

including the deletion of language

in Rule 7.3(c) and Comment 8 to

that rule, which regards the need

to label appropriate envelopes as

“advertising material.”

RETHINKING REFERRALS

Members were not the only ones

to provide feedback. The ABA

Standing Committee on the Delivery

of Legal Services sent a letter to the

ethics committee in March chal-

lenging whether the proposed rules

were concise, consistent and clear.

Advertisement and solicitation “play

a significant role in the ability of

those with modest means to access

legal services,” the committee wrote.

While the legal services commit-

tee’s letter discusses numerous issues

with the proposed changes, six of

the letter’s nine pages advocate for

the deletion of Rule 7.2(b), a recom-

mendation also made by the ABA

Commission on Ethics 20/20 in

2012.

Rule 7.2(b) says: “A lawyer shall

not compensate, give or promise

anything of value to a person who

is not an employee or lawyer in the

same law firm for recommending the

lawyer’s services except” when pay-

ing the costs of an advertisement or

receiving a nominal gift, for example.

Rule 7.2(b) “provides no protec-

tions that are not provided for in

other rules,” says Charles Garcia,

chair of the Standing Committee

on the Delivery of Legal Services

and author of the letter.

Beyond the rule’s alleged redun-

dancy, the legal services committee

argues that 7.2(b) is unclear regard-

ing what constitutes a recommen-

dation, which hinders for-profit

referral models.

A CASE STUDY

One case that the legal services

committee points to was a dispute

over Total Attorneys, a for-profit lead

generation company. When Total

Attorneys was founded in 2002,

“the concept of lead generation in