Report Slams Ethics Rules on Attorney Advertising As “Outdated” And “Unworkable”

Michael E. McCabe, Jr.ABA Model Rules of Professional Conduct, AdvertisingLeave a Comment

Shredder“It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising,” says the Association of Professional Responsibility Lawyers (APRL) in a comprehensive report released June 22, 2015.  The report, which was authored by the APRL’s Regulation of Lawyer Advertising Committee, is the culmination of a two-year study of the ABA Model Rules of Professional Conduct and various state bar approaches to regulating lawyer advertising.

The report states that the balance between the “core values” of professional responsibility and effective lawyer advertising must be “realigned” to ensure that consumers of legal services have access to accurate information about legal services.

The authors of the report are nationally-recognized experts in the field of professional responsibility and legal ethics.  They conclude that current attorney advertising regulations–which were largely promulgated in the 20th century–are “unworkable” in view of 21st century technology and the means by which people today disseminate and receive information.  The Committee found that:

Virtual law practice and web-based delivery of legal services, as well as the public’s increased reliance on and use of the Internet and mobile technology, mandate a reexamination of how the legal profession views lawyer advertising and what can or should be effectively regulated.

The report states that current attempts to regulate electronic media advertising are overly restrictive, inconsistent, and under-enforced.  Furthermore, present lawyer advertising regulations raise significant First Amendment and anticompetitive concerns and make little sense given changes in technology and the globalization of legal services.

The report proposes extensive revisions to Model Rules 7.1 (regarding communications concerning a lawyer’s services), 7.2 (regarding advertising), 7.4 (regarding communication of fields of specialization), and 7.5 (regarding firm names and letterhead).  For those patent and trademark practitioners who are subject to the ethics rules of the USPTO, the corresponding rules implicated by the report are 37 CFR 11.701, 11.702, 11.704 and 11.705.

According to the report, the proposed rule changes would serve the goals of (1) establishing a uniform and simplified rule that prohibits false advertising; and (2) ensuring the public has access to accurate information about legal services.

The report is a must read for lawyers, bar counsel, academics and law students.

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