ABA Approves Changes To Attorney Advertising Ethics Rules

Michael E. McCabe, Jr.ABA Model Rules of Professional Conduct, Advertising, Legal Ethics, Social Media Ethics, SolicitationLeave a Comment

The American Bar Association’s House of Delegates approved on Monday an overhaul to its ethics rules governing attorney advertising and solicitation.  The ABA vote on Monday capped a four-year effort to modernize ethics rules promulgated in the 1980s–long before the Internet forever changed how lawyers market their services and communicate with prospective clients.

The ABA’s vote was spurred on by the efforts of the Association of Professional Responsibility Lawyers (APRL), which issued a Report (copy here) in 2015.  The APRL Report found that the ABA Model Rules governing attorney advertising were “outdated and unworkable in the current legal environment and fail to achieve their stated objectives.”  The APRL Report concluded that “First Amendment issues, globalization of the practice of law, and rapid technology changes” required a “realignment of the balance between the professional responsibility rules and the constitutional right of lawyers to communicate with the public.”

A (pre-vote) redline draft of the ABA rules changes that were ultimately adopted is included here.  The following Q and A should help highlight the import of some of the rule changes that may be of interest particularly to those who practice before the USPTO.

Is Social Media and Internet-Based Marketing Covered?

Yes–The new rules were in large part designed as a direct result of changes in technology that did not exist when the lawyer advertising rules were originally promulgated.  Even the word “advertising” was stricken–the new Model Rule 7.2 (previously entitled “Advertising”) was rebranded “Communications Concerning a Lawyer’s Services: Specific Rules.”  Gone are antiquated references to “advertising” via “written, recorded or electronic communication” in favor of a more broadly worded right of attorneys to “communicate information regarding the lawyer’s services through any media.”

Can I Call Myself a Specialist?

It is quite common for attorneys today to identify as “specializing” or “concentrating” in a particular field of law.  The comments to the new ABA Model Rules state that a lawyer is “generally permitted” to make such representations, provided that the such statements are not false and misleading.

A statement that a lawyer is “certified” as a specialist in a given field, however, is another matter.  Some states provide a process for the “certification” of attorneys who practice in particular fields.  The State Bar of California, for example, provides a legal specialization examination and a track by which attorneys who concentrate in various practice areas (such as criminal law) may become “certified” as a specialist in that field.  Under the new ABA Rules, statements regarding a lawyer’s “certification” are inappropriate unless the lawyer “has been certified as a specialist by an organization that has been approved by an appropriate” governmental authority and “the name of the certifying organization is clearly identified in the communication.”

Is A Registered Patent Attorney or Agent a “Certified Specialist”?

The new ABA Model Rule on certification as a “specialist” appears to be intended to equate admission to the USPTO Patent Bar as a de facto “certification” by a government agency.  Although not addressed expressly in the text of new Model Rule 7.2, new comment 10 explains:

The Patent and Trademark Office has a long-established policy of designating lawyers practicing before the Office. . . . A lawyer’s communications about these practice areas are not prohibited by this Rule.

While it is unknown whether patent attorneys or agents will start labeling themselves as “certified specialists” based on their registration to practice in patent matters before the USPTO, a good argument would appear to exist that a lawyer’s or non-lawyer’s admission to the Patent Bar qualifies as a governmental certification of specialization the field of patent law.  Indeed, the comments to the new ABA Model Rules explain that “Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable.”  That is, it would seem, precisely what the USPTO does when it considers whether someone meets the federal standards necessary to qualify to practice in matters before the Office.

Still, patent practitioners should be mindful that the USPTO’s Rules of Professional Conduct do not adopt the ABA Model Rule comments.  Time will tell whether the USPTO’s Office of Enrollment and Discipline would object to a registered patent practitioner holding themselves out as being “certified” as a “specialist” in USPTO patent matters based on their registration.

Is Posting Online “Soliciting” Clients? 

Not under the new rules.  One of the more troubling aspects of the prior version of ethics rules was the interpretation that many online forms of attorney communication were viewed as subject to regulation as a form of “solicitation” of clients.  The amendment to Model Rule 7.2 clarifies that a “solicitation” means a communication by a lawyer “that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide . . . legal services for that matter.”  The comment clarifies that a lawyer’s communication “is not a solicitation” if it is directed to a general audience, is in response to a request for information, or is “automatically generated in response to electronic searches.”

If I Email A Prospective Client About a Particular Matter, Am I Unlawfully “Soliciting”?

Generally, no.  The new rule prohibits “live person-to-person contact” where the motive is the lawyer’s monetary gain, unless the person contacted is someone who the lawyer knows already (such as a prior business contact or former client) or is a “person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters.”  So now cold calls are generally permitted if the person contacted is “known” to be an “experienced” consumer of legal services.

But what about a “cold email” or text to someone who does not fall within one of the solicitation exceptions?  According to the comments to the new rules,

“Live person-to-person contact” means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications such as Skype or FaceTime, where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard.

Can I Misrepresent My Credentials?

Of course not.  The new rules do not change the fundamental rules–still included in the existing lawyer ethics codes–that prohibit lawyers from making false or misleading communications about the lawyer or their services.  Such communications are still prohibited, even under the revised ABA Model Rules.

Does The ABA Action Impact Attorneys Now? 

Not yet–at least for most attorneys.  The ABA Model Rules are just those–model rules.  The Model Rules are not binding on the states or other attorney regulatory agencies–including the USPTO.  Still, every jurisdiction has adopted some version of the ABA’s Model Rules.  It is anticipated, therefore, that the ABA’s rewriting of its Model Rules 7.1-7.5 will cause a jurisdiction-by-jurisdiction specific implementation of new advertising and solicitation rules based on changes to the model.

Still, some jurisdictions had anticipated these changes based upon proposals made by the APRL 2015 study.  In May 2017, for example, the Virginia Supreme Court issued new rules to “simplify and modernize” its own advertising rules.  For a discussion on the Virginia rules changes, see Karen Rubin’s post here.

Stay tuned as more states turn their attention to updating their ethics rules in light of the ABA’s modification to its lawyer advertising and solicitation rules.

 

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