I posted the other day about the proposed changes to the ABA Model Rules around attorney advertising. If I sounded frustrated about the glacial pace of change, it’s because it should be manifestly obvious that the attorney advertising rules are a disaster. Our generation of lawyers has inherited a partially-digested bolus of logorrheic, outdated rules from days of yore. And these rules are supported by pearl-clutching about shadowy horrors, rather than evidence that the rules actually address real harm to the public.
Compounding matters is how lawyers are wired:
1) In an effort to avoid any possible risk to their licenses, most conscientious attorneys over-comply with the rules; and
2) In an effort to provide the widest possible guidance, most regulators and bar ethics committees over-interpret the rules to cover all sorts of activity that can’t legally be limited.
The end result? Consumers get less information about legal services, attorneys feel hamstrung in how they can engage with potential clients, and innovation in the delivery of legal services is hampered across the board.
What’s more, the Rules actually cost the bar in money and attention. As the APRL 2015 Report notes:
In addition to the over-regulation of lawyer advertising that does not serve the legitimate public policy of assuring accurate information about legal services, state regulators (most often Bar associations) spend hundreds of thousands of dollars attempting to defend the regulations in various lawsuits brought by members.
The trifecta! Bad for the public, bad for lawyers, bad for the Bars.
So what should be done? Hey, I’m not just a naysayer – I’ve got solutions! The good news is that the Rules aren’t hard to fix:
Scale the Ad Rules WAY Back
There’s no reason whatsoever for 8,000+ words of attorney advertising rules. 1 Ask any Bar disciplinary counsel; they’ll tell you that they’re focused on the bad actors, and not attorneys who forgot to put a disclaimer in the right place. And they’ll also tell you that the only advertising rule that they need to go after these bad actors is Rule 7.1:
“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”
So let’s gut the Rules. We can start by just flat-out eliminating – entirely – Rules 7.2, 7.4, & 7.5. I’ve never heard a remotely compelling argument for the continued existence of these Rules; they are all just sub-variations on the theme of Rule 7.1.
This isn’t that radical of a position; in fact, it’s what the APRL 2015 Report advocated for. But while the ABA Committee bought this argument with respect to Rule 7.5 (firm names), it has inexplicably retained Rule 7.2 – which, as I wrote about earlier – is the Rule that causes nearly all of the harm. Time to finish the job and get rid of this outdated, overreaching rule once and for all.
Lower the Stakes
Bars could take a giant step toward removing the chilling effect of the Rules via a simple measure: taking discipline off the table for the vast majority of potential Rules violations. As the APRL 2015 Report notes:
Lawyers should not be subject to discipline for “potentially misleading” advertisements or advertisements that a regulator thinks are distasteful or unprofessional. Nor should they be subject to discipline for violations of technical requirements in the rules regarding font size, placement of disclaimer, or advertising record retention. Regulators should use non-disciplinary measures to address lawyer advertising and marketing that does not violate Model Rule 8.4(c).
Translation: technical compliance with the Rules – to the extent there are technical rules – should be accomplished via outreach and education, not threat of disciplinary sanctions (though sanctions would STILL apply in cases of false advertising or repeated, intentional flouting of the rules).
Bars that did so would be doing an enormous favor to their members, who could then feel comfortable engaging with new technology without concern that they might inadvertently put their licenses at risk.
Here’s a radical thought: how about testing whether a practice causes any consumer harm, rather than hypothesizing the worst potential outcome?
I know that we as lawyers are trained to “spot issues,” but this training drives way too much tentativeness. Instead of applying the precautionary principle – REGULATE NOW, IN CASE THE BAD THINGS HAPPEN – Bars could try controlled tests.
Say a Bar has gotten a question about an innovative product like Avvo Legal Services. Instead of agonizing for 6-12 months over the potential RPC implications, the Bar could – gasp – have a quick talk with the provider and make a deal: the Bar would explicitly let attorneys know it’s OK to participate, if the provider agrees to feed the Bar data on engagement, complaints, etc. 2 There would also be the understanding that it would be a time-limited test (enough time to get data sufficient to understand consumer impact) and that the Bar could pull the plug early if results looked super-ugly.
A process like this would actually IMPROVE the Bar’s ability to address real consumer harm, while smoothing the road to innovation. Because listen: there’s ALWAYS the potential for harm. Life is not without risk. But without taking some chances, we’ll never see where the big opportunities lie – for lawyers and clients alike.