Some Interesting Changes to the ABA Model Rules re Marketing.
The Association of Professional Responsibility Lawyers (APRL) and the American Bar Association Standing Committee on Ethics and Professional Responsibility are proposing to amend the ABA Model Rules of Professional Conduct (here) relating to Marketing Legal Services, i.e. Rules 7.1- 7.5.
The Legal Marketing Association (LMA) refers to these rules as “primary guidance for lawyers, law firms, legal marketing and communications professionals, and other client-services providers as to the manner and methods used to offer information about the scope of — and qualifications to provide — legal services to existing and potential clients.” Reviewing the suggestions, many of them are practical improvements that acknowledge the effect of the Internet on daily business communication.
In my opinion, the most-important change is to rule 7.3 re “Solicitation of Clients” is 7.3(a)3, which finally acknowledges that there’s a difference between unsophisticated laypeople and “experienced users” of legal services!
I testified on this issue back in the 1990s during a previous reauthorization of the Model Rules. My point then was that Fortune 500 GCs seeking a lawyer for a basic corporate deal did not require the same level of protection against a law firm’s marketing as e.g. a terrified first-time criminal defendant or a teenager tragically injured in a car wreck. The panel didn’t see it that way.
Finally, there’s a proposed exception for solicitation of business work:
…(3) with a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters.
Clearly, savvy executives don’t need much protection against a lawyer’s individual marketing. Logic prevails.
There’s still some room for improvement.
I’m still bothered by the phrase “(a) A lawyer shall not solicit professional employment by live person to person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain,…”
That is, a lawyer can look for work, but not if it’s because s/he wants to earn a living?
The proposed rules carve out a few exceptions e.g. friends, family, or other lawyers. That is, you can’t solicit strangers, but you can personally hit up your friends or family in order to make money off of them. The Comments basically suggest that the “friends and family” exception is because lawyers are less likely to try to screw their friends or family for money. I can’t decide if I should find that “pecuniary gain” rule ridiculous or insulting.
Finally, the Comments still justify the protections because lawyers are so adept at in-person sales activities (expressively referred to as “the private importuning of the trained advocate”). Having been in legal marketing for 25 years, I love that the revision committees think that lawyers are terrific salespeople. (I know quite a few legal marketers who would challenge that assumption.) It’s 2018, but I still regularly hear from lawyers who “didn’t go to law school to become a salesman.” (Of course, they’re mostly 45-year-old associates.)
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