Category Archives: Regulation

No, the Facial Validity of Ad Rules Doesn’t Get Ethics Committees Off the Hook

As I’ve often noted, I take a dim view of ethics opinions that don’t consider the First Amendment implications when dealing with lawyer advertising. I mean, it’s a pretty important thing, the First Amendment, right? And as the First Amendment drives the boundaries of the rules, it . . . seems like a big miss to not pay attention to it.

In response to my making this point during a talk earlier this week, the objection was raised that the rules are just fine; they’ve been tested in court and found to be constitutional. Case closed; ethics committees needn’t worry about anything other than considering how far the rules might be stretched to prohibit various attorney conduct.

I didn’t have the opportunity to respond to this curious argument, but given the bona fides of the attorney who made it (an eminent and smart lawyer, who shall go nameless here), I suspect this argument may have more currency than I would have thought. So, a quick little First Amendment lesson:

IT DOESN’T MATTER if the Rules have already been found to be Constitutional.

Hell, if they hadn’t been so found, they would no longer be the Rules.

In First Amendment law there are “facial” and “as-applied” challenges to rules. The former argues that a law is unconstitutional on its face; it is not possibly amenable to a constitutional interpretation. The latter – which is far more common – argues that the law has been unconstitutionally applied in a particular case.

So the fact that Bar advertising Rules may have survived previous constitutional challenges is only relevant to the extent one is interpreting similar applications of the rule. It is not remotely a clean bill of Constitutional health to all applications of the rule, and certainly not an excuse for ethics committees to turn a blind eye to First Amendment parameters when opining on speech-impacting rules.

I realize, too, that this makes the jobs of ethics committees more difficult. But given the costs to the public and the bar imposed by overreaching opinions in this area, they need to either do this work or get out of the business of issuing ethics opinions on lawyer advertising.

More Ethics Opinions on Avvo Legal Services

I recently returned from lovely Asheville, North Carolina, where the North Carolina State Bar moved to adopt an ethics opinion favorable to Avvo Legal Services. The Bar also proposed changes to the fee-sharing and trust account rules to specify that mechanical-but-not-client-impacting payments to intermediaries (the bugaboo of too many regulators) are not prohibited under the Rules of Professional Conduct.

The North Carolina EO and Rule Changes – which are moving forward for final comments and, one hopes, adoption – are the culmination of what has been a model process. The Bar appointed a subcommittee to address the issue, and that group took its time. It held numerous meetings, and got input from all corners to understand the issues. The subcommittee also brought to bear a deep understanding of both the public-protection purpose of the Rules, and the constitutional constraints which govern them.

And then there’s the New York State Bar Association.

The NYSBA announced today that it has issued an ethics opinion finding that Avvo Legal Services violates New York’s rules of professional conduct – specifically, the prohibition against lawyers paying third parties to recommend them.

Unlike the North Carolina State Bar, the NYSBA is a voluntary, non-regulatory legal trade association. It opinions are purely advisory. But New York is a big and influential state, and lawyers are sure to have questions about this opinion. And while the NYSBA didn’t run a transparent and public process like North Carolina’s, it did – to its credit – actually take the time to understand how Avvo Legal Services works.

But they still came to the wrong conclusion.

As in most states, the New York Rules of Professional Conduct prohibits lawyers from paying for “recommendations.” The NYSBA opinion finds that attorneys participating in Avvo Legal Services are making “improper payment for a recommendation in violation of Rule 7.2(a).” Yet in reaching this conclusion, the NYSBA stretches the term “recommendation” far beyond its permissible bounds.

As I am constantly going on about, there are First Amendment limitations on the Rules of Professional Conduct. Attorneys have a right to express themselves, and the public has a right to access information about legal services. What this means in practice is that the Rules can’t mean whatever the regulators want them to mean. It means that the Rules can’t be interpreted to broadly gather in anything that might arguably sound like it could “fit” under the rules.

More specifically, attorney advertising restrictions must:

  • Materially advance important state interests, and
  • Do so in a narrow fashion.

That’s not my opinion; it’s the law.

The NYSBA opinion doesn’t grapple with these obvious Constitutional guardrails. Instead, it basically says:

“Hey, if you squint hard enough, and add together Avvo’s objective system of lawyer ratings plus some marketing statements Avvo uses to refer to lawyers in general, that looks kinda like a “recommendation” of every participating lawyer.”

That’s far, far too broad. To survive First Amendment scrutiny, a prohibition on recommendations must be narrowly limited to those recommendations that actually mislead the public. And the NYSBA opinion acknowledges this in passing, noting its earlier Opinion 799, which found that the “recommendation” line is crossed when the referrer “purports to recommend a particular lawyer or lawyers based on an analysis of the potential client’s problem.”

This is getting at the issue, because such a recommendation – particularly in the absence of transparency and consumer choice – can lead the consumer to believe they are being sent to the best possible attorney for their legal problem, when in fact they are being sent to the one paying the most money.

But instead, the opinion treats “recommendation” as a broad-ranging term into which anything bearing a passing resemblance can fit. That’s not a stand that will survive its first encounter with judicial review.

And this is yet more evidence of a far too common pattern: applying the prophylactic, overly-cautious ethics opinion approach to rules where the Constitution dictates a much lighter hand. It’s a continuation of a decades-long habit of chilling lawyer speech, to the detriment of consumers and lawyers alike.

Why New Jersey Gets it Wrong on Avvo Legal Services

OK, so one of the last things I read work-wise, before going off the grid to chase after Amelia Earhart in Kiribati for three weeks, was this joint opinion by three committees of the New Jersey Supreme Court taking issue with Avvo Legal Services. 1

I’ve long lambasted the issuance of regulatory ethics opinions on matters related to attorney speech. The principle behind prophylactic ethics opinions – “err on the side of caution when interpreting the ethics rules” – fits very poorly with the First Amendment principles protecting access to information about legal services. Unless regulators engage with these principles, they are doing the bar and the public a disservice whenever issuing advisory opinions in this area.

That said, this New Jersey opinion is better than some on this front, as it addresses the fee-splitting bogeyman head-on. And in so doing, the Committees conclude that Avvo Legal Services “does not insert itself into the legal consultation in a manner that would interfere with the lawyer’s independent professional judgment.” We agree. And this is an important point, as the animating principle behind Rule 5.4 – which prohibits the splitting of fees – is the protection of the attorney’s independent professional judgment.

However, there are three big ways in which New Jersey arrived at the wrong conclusion:

Incoherence on Fee-Splitting

There are two ways of thinking about fee-splitting: let’s call the first the “mechanistic” formulation, and the second the “principled” formulation.

In the former, any agreement to split a legal fee violates the rule. You don’t need to look beyond the terms of the transaction; if the fee is getting split, the rule is violated.

In the latter, the focus is not on the mechanics of the transaction, but on the reality of the arrangement. If the deal with a non-lawyer third party puts the lawyer’s independent professional responsibility at risk, the rule is violated.

So in the “principled” formulation, regulators will look past some technical fee splits (e.g., credit card processing fees) because they do not risk conflicts. And in the “mechanistic” formulation, regulators will look past some conflict-laden business deals (e.g., cross-referral arrangements) because they do not technically involve the splitting of a legal fee.

As Avvo Legal Services does not involve the splitting of a fee – the entire fee is paid to the attorney, and the attorney pays Avvo a separate marketing fee – it shouldn’t run afoul of New Jersey’s rule unless the state follows the “principled” formulation and finds that our program conflicts with the professional independence of lawyer participants.

New Jersey didn’t do that; in fact, it explicitly found that Avvo Legal Services does not create such interference. Yet the opinion still finds that Avvo Legal Services constitutes prohibited fee-splitting. Why?

It’s possible that the New Jersey Committees didn’t fully understand how Avvo Legal Services works. They may have assumed – incorrectly – that Avvo deducts its marketing fee from the legal fee prior to passing it through to the attorney.

However, the rest of the opinion leads me to believe that the Committees are grasping at something more amorphous: a free-floating finding of fee-sharing in the absence of either a technical fee-split OR an indication of risk to a lawyer’s independent professional judgment.

Such a principle would be incoherent and dangerous. It risks subjecting ANY expenditure of money by an attorney to the whims of the regulators. Because ALL legal fees are “shared” at some point. They get shared with landlords, office supply vendors, secretaries, plant waterers, brass polishers, and software programmers. And they get shared in rough proportion to their size because with more legal fees there are more goods and services for lawyers to buy.

New Jersey seems to want to have the leeway to apply Rule 5.4 to any transaction it sees fit. But regulation doesn’t work that way: Rule 5.4 is either violated via the letter of the rule (“no sharing of a legal fee”), or via the spirit of the rule (“no third party deals that put attorney independence at risk”). So how can Avvo Legal Services be a problem when it involves neither of these?

What’s a “Lawyer Referral Service?”

New Jersey prohibits attorneys from participating in for-profit lawyer referral services, and the opinion finds that Avvo Legal Services constitutes just such an “impermissible attorney referral service.” Why? Because the marketing fee charged by Avvo Legal Services is based on the legal services provided to the client who Avvo has connected with the attorney.

There’s no analysis of why such a structure is bad for clients, or even how such “cost per action” payment for marketing makes Avvo Legal Services a “lawyer referral service.” As I’ve long pointed out – but as the New Jersey Committees only tacitly acknowledge in the opinion – the key definition of a “lawyer referral service” is the existence of consumer deception inherent in “steering” a potential client to a particular lawyer. And there are actually some ethics opinions that lay this out pretty clearly, including this one:

“Opinion 13 set forth three factors for distinguishing between impermissible referral services and advertising. The first factor is whether the marketer limits access to information or whether, like a “Yellow Pages” directory, the entire list of participating attorneys is available to the consumer. The second factor is whether the marketer, explicitly or implicitly, guides consumers to a specific attorney. In contrast to directories such as “Yellow Pages,” a referral service “is a directing intermediary, not just an encounter between the consumer and the passive information made available by the attorney.” The third factor is whether the marketer serves a public purpose (providing information about attorneys or putting people in touch with attorneys) or primarily a commercial purpose.”

The state issuing that guidance? New Jersey. 2

Avvo Legal Services has no such opacity or guidance of consumers to a particular attorney; consumers are free to choose from any participating attorney. And New Jersey doesn’t conclude differently. Its opinion simply declares that the cost-per-action nature of Avvo’s marketing fee renders the program a disqualified lawyer referral service. As shown below, that’s not how this whole “lawfully interpreting the rules” business works.

Blowing Off the First Amendment

The opinion includes this gem:

“The First Amendment does not protect lawyers who seek to participate in prohibited attorney referral programs or engage in impermissible fee sharing.”

That’s glaringly wrong. It’s not a question of “protecting” lawyers; it’s a question of how the Constitution dictates that speech-impacting Rules of Professional Conduct be interpreted.

Prohibiting attorneys from participating in lawyer referral services is a form of commercial speech regulation. This means such a prohibition must meet the Central Hudson requirements of necessity and narrowness.

So the New Jersey Bar can’t simply say that lawyers can’t participate in lawyer referral services, and it can’t define “lawyer referral service” so broadly that the term captures ANY new form of marketing that the Bar isn’t entirely comfortable with. The Bar must show a significant government interest driving its rule, and it also must show that its regulation advances that interest in a minimally-speech-restrictive fashion.

The rationale for a special restriction on lawyer referral services has been – as New Jersey’s earlier Opinion 43 and other such opinions note – that such services present a special risk to the public, characterized as they are by a lack of transparency and directive conduct.

That’s fine, but the rule always must be interpreted in light of the limited box in which it sits (i.e., constraining a specifically problematic set of deceptive marketing practices). So if New Jersey is going to find that Avvo Legal Services is a lawyer referral service prohibited to New Jersey attorneys, it’s got to make an empirical finding that something about our program fits within this rationale. Similarly, if New Jersey is going to find that a form of advertising is off-limits because of the method of payment, that conclusion must also be supported by evidence that the practice is harmful to the public.

The New Jersey Committees don’t remotely do that. Rather, their opinion simply concludes that the First Amendment doesn’t apply here.

Such a position ignores the copious volume of cases laying out how the First Amendment limits attorney advertising regulation. And integral to those limits is the recognition of the importance of consumer access to justice and information about legal services. Opinions like this one – which flout these Constitutional limits in seeking to impose broader restrictions – run contrary to both the law and the purpose of the rules.

Notes:

  1. This trio included the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law.
  2. See N.J. CAA Opinion 43 (June 2011).

Welcome Back From the Jungle

My father is an archaeologist; he’s spent years working in the Pacific, and I spent a summer as a child trolling around places like Saipan, Chuuk, and Pohnpei. When I was in college, my dad took on a project to try and solve the mystery of Amelia Earhart’s disappearance. He’s been at it since then, and I’ve long heard of the Nikumaroro hypothesis and my father’s work toward testing it. This year, I finally had the chance to accompany him on a trip to Niku, and we set out on June 21 (you can read more about the expedition here).

Nikumaroro is a very hard place to get it – it’s one of the most remote places on the planet. Getting there involves flying to Fiji and then taking a 5-day boat ride. So I’ve been off the grid for the last few weeks, between getting to and from the island and spending a week digging in the coral and fighting through the jungle brush.

And speaking of pointless, invasive jungle brush (scaviola, if you must know), one of the last things that crossed the transom before I went incommunicado was a New Jersey ethics opinion taking issue with Avvo Legal Services.

While I must commend the authors of the opinion for getting one thing right (finding that Avvo Legal Services doesn’t interfere with the independent professional judgment of participating attorneys), I’ve got a dim view of the rest of it. Like similar opinions before it, it forms a scaviola-like thicket, blocking innovation and consumer access to legal services.

I’ll have more to say about the opinion in an upcoming post – now that I’ve returned to civilization and things other than lost aviators and coconut crabs.

Compelled Speech & Viewpoint Discrimination

So “compelled speech.” The government telling you what you’ve got to say. It’s surprisingly common, and also often uncontroversial. Think nutrition labeling and warning signs.

Other times, not so much.

So what’s the test? Under what circumstances can the government tell us what we’ve got to say?

I’ll tell you what the test SHOULD be: it should be the same “intermediate scrutiny” test that applies to commercial speech restrictions. Meaning that if the state wants to make a business say something, that requirement must be both necessary and narrowly-tailored. Oh, and there’s gotta be some evidence of necessity.

But this area of commercial speech law is a mess.

It all starts with Zauderer v. Office of Disciplinary Counsel, a 1985 Supreme Court case dealing with attorney advertising. One of the key issues in the case – and the one it is best known for – was the legality of a disclaimer requirement for “no recovery, no legal fees” advertising.

The Zauderer court found that the disclaimer rule must only be “reasonably related” to the state’s interest in preventing consumer deception. That’s a much lower bar to clear than the intermediate scrutiny standard. Pretty much any argument the state can make without breaking into uncontrollable laughter will do.

Unfortunately, some nuance has gotten lost since Zauderer was decided. What it seems the court meant – though it was only specifically called out by Justice Brennan in his concurrence – is that the “reasonably related” test is only appropriate when the compelled speech is necessary to avoid consumer deception. Sadly, what this has been taken to mean by many lower courts is that ANY compelled speech need only be justified under the “reasonably related” test.

So this brings me to the Supreme Court’s decision Monday in Matel v. Tam, a case involving the trademark application for the band “The Slants.” It was an important decision, and a unanimous one, 1 finding that the government’s denying of “disparaging” trademarks was constitutionally impermissible content regulation. But in a four judge concurrence, Justice Kennedy went even further, delving into the importance of holding the government to a high standard when it dictates a viewpoint, even in the commercial speech context:

“Commercial speech is no exception,” the Court has
explained, to the principle that the First Amendment
“requires heightened scrutiny whenever the government
creates a regulation of speech because of disagreement
with the message it conveys.” Sorrell v. IMS Health Inc.,
564 U. S. 552, 566 (2011) (internal quotation marks omitted).
Unlike content based discrimination, discrimination
based on viewpoint, including a regulation that targets
speech for its offensiveness, remains of serious concern in
the commercial context. See Bolger v. Youngs Drug Products
Corp., 463 U. S. 60, 65, 71–72 (1983).

If the government picking and choosing which trademarks are appropriate is “viewpoint discrimination,” why is the same not true for compelled speech? Or, at least, speech that is compelled outside of those situations where disclosure is necessary to cure otherwise-deceptive marketing messages?

This isn’t an idle question. There are dozens of instances of speech compulsion contained within state lawyer advertising rules, and many – if not most- of them aren’t designed to cure otherwise-deceptive messages. In fact, many require that attorneys publish the state’s view on the efficacy or usefulness of lawyer advertising. 2

Speech that’s compelled outside of health, safety, or a need to cure deceptive marketing is an even starker example of viewpoint discrimination than the picking and choosing of acceptable trademarks. I’d love to see the Supreme Court close this “Zauderer exception” to the commercial speech doctrine sooner rather than later.

Notes:

  1. 8-0; Justice Gorsuch wasn’t on the bench when the case was heard.
  2. For example, New Jersey requires that any comparative advertising by lawyers state that “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.”

9th Circuit Reverses on Expanded Protection for Commercial Speech

Early last year, the 9th Circuit made an intriguing ruling: that commercial speech regulation required an even higher showing of necessity than that long-recognized by the “intermediate scrutiny” standard.  Unfortunately, in an en banc opinion this week, the court reversed its decision in RDN v. Appelsmith. 

That’s a shame, because there’s been a lot of noise that the commercial speech doctrine could use some freshening up and additional protection from overreaching regulation. And while the appellants here have vowed to take this case to the Supreme Court, the odds of getting that kind of review are always very long.

Unless SCOTUS wants to use this case to deal with the increasingly-large pit of vagueness in the commercial speech doctrine that is compelled speech. Is compelled speech subject only to rational basis review? Something more? Or are all speech requirements – compulsions and restrictions alike – subject to the same test of constitutional validity? A test perhaps more demanding than that laid out by Central Hudson?

Here’s hoping the Supreme Court decides to give us an answer.

Florida Supreme Court Rejects LRS Rule Changes

Last month, I did something I hadn’t done in 21 years. I put on a suit, grabbed my notes, and argued a case in court.

And not any old court: this hearing was in front of the Florida Supreme Court. The Court was hearing a petition by the Florida Bar to change its lawyer referral service rules.

In our view, the Bar’s changes were  bad for on many levels. They didn’t address the problem at hand (alleged cross-referral of legal clients for unneeded medical services). They created a cumbersome new set of compliance obligations. They watered down protections currently applicable to Florida lawyer referral services. And, by bringing virtually all forms of legal marketing within the ambit of the rule, they threatened to chill the availability of legal information and the willingness of Florida lawyers to offer innovative new services to the public.

So Avvo filed comments opposing the Bar’s rule change. We weren’t the only ones; it seemed that no one liked what the Bar was proposing. When it came down to it, Avvo was one of four parties arguing against the rules, and I was allotted all of 6 minutes with which to do so.

Appellate arguments call for a tricky balance. You’ve got to be ready to make your argument, for the allotted time, without facing a single question. But you’ve also got to be ready to abandon your prepared work and face down questions from the bench for as long as the Justices desire.

I’ve always preferred the latter, and as it turned out, the Court had lots of questions for me. The video is available here; my bit starts at 23:00. As you’ll see, the Court was far more interested in hearing about Avvo and online legal marketing than it was about my nuanced First Amendment arguments.

It was gratifying – and fun – to argue in court again after so many years. And the Florida Supreme Court’s Greek Revival courtroom in Tallahassee was an inspiring venue in which to do so.

The capper came last week when the Court rejected the Bar’s proposed rules. While I’d like to claim that result on the force of my advocacy, it was the only reasonable outcome possible. The Bar had been asked to address a specific issue, and had used that opportunity to attempt wholesales changes to the rules.

It’s a favorable outcome, and I’m happy to see it. But at the same time, the process demonstrated how far from effective Bar regulation can be. In any other agency, regulatory changes would go though an administrative law process – with workshops, open hearings, and comments – to vet issues before adopting new rules. Florida, like many states, devolves that process to the Bar. The final arbiter is then the Supreme Court, which deals with the matter in much the same way it would treat any other adversary proceeding.

It’s not that such a system is doomed to failure. It could work, given enough structure, direction, and discipline by those involved. But the odds are long. Market participants drive the process, and these lawyers often have parochial interests. They also rarely have experience with administrative rulemaking. And the Florida Supreme Court sits at a remove, only dealing with the process near its conclusion.

For the Supreme Court to actively supervise this work – work that impacts the availability of legal services to the public – it’s got to get more involved. It must oversee and direct the Bar throughout the rulemaking process. This could include hiring out neutral professionals to run rulemaking. Or having a subcommittee of Justices deeply involved throughout (and there’s some indication in the Court’s order that it plans to do something along these lines).

This problem isn’t unique to Florida. Most lawyer regulators do their rulemaking in a similar way. But in a state with a bar as large and fractious as Florida’s, the weaknesses of the process are particularly evident.

Need a License to Speak Your Mind?

Need a license to perform your chosen occupation? More and more Americans do. While licensing has long been a requirement for doctors and lawyers, it has spread far wider – licensing is up 5-fold in the last 50 years or so, and around 25% of us work in professions where a license is required.

I’m not going to get into all of the reasons why this spread of licensing is counterproductive, read this Brookings Institute report if you want to dig deeper. Rather, I’m interested in how the spread of licensing is speeding toward a collision with the First Amendment – a collision that will likely change how we think about what’s included within the monopoly our legal licenses grant us.

The tension between occupational licensing and free speech rights is particularly fraught for lawyers, as so much of what we do involves verbal and written expression. But outside of lawyer advertising, there’s been next to no guidance from the courts about the limits of regulators to compel or prohibit the speech of lawyers.

Or the speech of any licensed profession, for that matter.

But with so many occupations now being licensed, and so many regulators imposing and enforcing rules, the Supreme Court’s opportunity to take this issue on may be fast approaching. Recently, we’ve had psychologists told that they couldn’t write newspaper columns, veterinarians told they couldn’t give advice online, and mathematicians told they couldn’t . . . math.

Oh, and Florida doctors have only just recently fought back efforts to restrict their ability to ask patients about guns in the home, and California now requires pregnancy counseling offices to provide government-mandated information about abortion services.

So, lots of efforts abound to restrict professional speech. But what do we know about the acceptable limits of professional speech regulation? Precious little. There’s Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C.and some lower court cases. My best guess from these cases is that professional speech regulation requires something in the neighborhood of the “intermediate scrutiny” review that applies to commercial speech.

But there may end up being a difference for regulation of those who aren’t licensed. It’s one thing for regulators to restrict the regulated, but what gives them the right to tell the rest of us what we can and cannot say?

Watch this; it has major implications for the monopoly that lawyers have on providing legal advice. After all, legal advice is just someone expressing their opinion. It’s hard to see what rationale exists for restricting such opinions to lawyers.

Non-Lawyer Investment in Law Firms?

While the ABA has, in recent years, tentatively nosed around the idea of allowing some form of non-lawyer investment in law firms, it’s a concept that continues to be met largely with cries of “BURN THE WITCH” rather than any meaningful engagement.

Arguments against are of the “lawyer exceptionalism” variety, which I addressed in a piece that Vermont Bar Counsel Michael Kennedy reminded me I wrote 5 years ago:

The idea that the law is an exceptional case, that it is a profession that “often mandates conduct and practices that are not profit maximizing or optimizing” such that non-lawyer ownership cannot happen is hogwash. The same argument can be made for business writ large – Sarbanes-Oxley, charitable giving, employee benefits, community involvement and the accounting profession (kidding!) – are all examples of conduct and practices common in business that are not profit maximizing. Or on a more specific level, with medicine, where doctors make daily non-profit-maximizing decisions in the service of patients, despite non-MD ownership of most large medical groups.

What’s more, so many of the problems that our prized ethics rules are designed to prevent could be more effectively solved by letting people who know something about running a business be involved in law firms:

Ineffective marketing, lackadaisical client development, poor internal controls, shoddy accounting practices – all can lead to cash crunches, blown deadlines, drawing from client trust accounts and the litany of ills that end in attorney discipline and malpractice lawsuits.

The concept is back in the news this week, thanks to the spectacularly-poorly-lawyered efforts of Jacoby & Meyers in pressing for a First Amendment right of lawyers to non-lawyer investment. It’s not a great argument, but they surely could have done a better job with it.

In any event, the advent of non-lawyer investment in firms will happen – if it ever does happen – through the wisdom of lawyers rather than judgments from tribunals. I’m hopeful that one day enough attorneys will realize that our profession CAN bring in professionals from other disciplines, allow them to be invested in our work, and improve the quality of the services we offer across the board.

But it might also take a little shaming:

 

High Past Time to Amend the Attorney Ad Rules

Faithful readers of this blog will know that I have long lamented the scabrous attorney advertising rules. Larded down with a centuries-old accretion of quaint prohibitions, the rules are doing nobody any favors.

However, there may be some light at the end of the tunnel. The ABA is actively considering a proposal to streamline its Model Rules relating to attorney advertising. This process gathered momentum on the back of some very fine work by the Association of Professional Responsibility Lawyers, and is happening in an environment that seems ripe for change: states from Oregon to Virginia are actively considering changes – good changes – to improve their ad rules.

Avvo has filed comments in support of the ABA’s initiative; you can read them here. Some other folks also filed comments; almost all of them are also supportive.

Here’s the tl;dr version of Avvo’s comments:

The current rules are both unnecessary and actively harmful. Unnecessary, in that the detailed regulations don’t offer consumers any meaningful protections beyond what a general prohibition on false and misleading advertising would provide. And actively harmful, as they cost the public legal information and innovation through the chilling of lawyer speech.

Here’s hoping the ABA sees this one through, and makes this necessary and long-overdue change.