A few months back, I ranted about the inanity of Bar ethics opinions – those things that purport to help conscientious attorneys ensure they are fully in compliance with the Rules of Professional Conduct. I’d like to add some nuance to that, and also propose a new approach for bars when it comes to ethics opinions.
Here’s the thing: the extra-careful, bend-over-backward approach of ethics opinions is actually a good thing when it comes to a lot of the ethics rules. As I tell attorneys, if you feel like you’re splitting hairs or facing a close call when it comes to client confidences or protecting your client’s assets, you’re already lost. You should ALWAYS err on the side of caution in those matters. And ethics opinions do a great job of helping attorneys err on the side of caution.
The problem comes when ethics opinions apply this same belt-and-suspenders approach to attorney marketing.
Here’s why: the rules dealing with attorney-as-fiduciary (whether money or confidences) only ratchet one way. There’s no detriment to clients if attorneys are overly-protective; what client WOULDN’T want their attorney to be super-cautious when it came to their money or secrets? But that’s not the case for attorney marketing. Applying the same level of caution to marketing is actually BAD for consumers, as it deprives them of important information about legal services.
How’s that? Because a major way consumers find information about legal services is via communications from lawyers. And a lot of those are marketing communications. If the conscientious lawyers – the kind who ask for, read, and pay attention to ethics opinions – are pulling back their communications because a Bar ethics opinion took an uber-conservative interpretation of the attorney advertising rules, then consumers have access to less information and fewer innovative service offerings. That’s a bad thing for consumers and lawyers alike.
And it’s not just good policy that a fundamentally different level of caution should pertain to interpreting the RPCs as applied to marketing rules than to the other professional obligations of attorneys. You see, the First Amendment dictates that a wholly separate level of scrutiny apply to regulation in this area. While the state has wide latitude to regulate most matters related to attorney regulation, it has a much higher burden to meet when it comes to interpreting rules that impact legal marketing (for more on this, see my in-depth discussion of the commercial speech doctrine).
Yet Bar ethics opinions almost never acknowledge this, and persist in taking the same cautious approach regardless of the rule in question. This is no good: it shows a lack of respect for important First Amendment principles, and it is actively harmful to both the profession and the public it serves.
So here’s my modest proposal: Bars should simply stop issuing ethics opinions on questions impacting legal marketing. To preempt such requests, they could feature a statement like this on their “ethics opinions” pages:
The First Amendment protects the commercial speech of attorneys. This is not just for the benefit of attorneys. As the US Supreme Court noted in Bates v. Arizona:
“[T}he consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking.” 433 U.S. 350, 364 (1977) (internal citations removed.)
There is an inevitable tension between the cautionary approach of ethics opinions and the public interest in access to a robust amount of information about legal services. Accordingly, the Bar does not offer advisory ethics opinions on the Rules of Professional Conduct relating to attorney advertising.
This should not be interpreted as a lack of concern for compliance with the Rules in this area. The Bar actively pursues disciplinary action against those attorneys who engage in false, misleading, or otherwise deceptive marketing practices.