Posted: June 11, 2013
Rules of Professional Conduct
Petition to Revise Utah Rules of Professional Conduct for Lawyer Advertising Rules. Revises the rules to more thoroughly address problems with misleading and inaccurate lawyer advertising, both potential and existing, in order to better protect the public. The changes are designed to help lawyers comply with the new rules, as they are more specific than current requirements. The basic components of the proposed rules provide fuller definitions of what constitutes false and misleading legal service communications. The proposed rules would tie compliance requirements to the Bar’s annual licensing renewal form. The new rules would require the lawyers to annually submit any Uniform Resource Locator (URL) they use in advertising and to submit such advertising as mass mailings. There is no requirement for prior review of any advertising.
RPC 07.01. Communications Concerning a Lawyer’s Services. Amend.
RPC 07.02. Advertising. Amend.
RPC 07.02A. Filing Requirements for Public Advertisements and Written, Recorded, Electronic, or Other Digital Solicitations. New.
RPC 07.02B. Advertising Review Committee; Pre-dissemination Review. New.
Exhibit 7. Western States Bar Conference Information.
Exhibit 8. Harrell v. The Florida Bar.
Exhibit 9. Research Memorandum.
Appendix A. ABA Model Rule 7.1.
Appendix B. ABA Model Rule 7.2.
Appendix C. Differences between State Advertising and Solicitation Rules and ABA Rules of Professional Conduct.
Appendix D. Florida Rules.
Appendix E. Nevada Rules.
Appendix F. Texas Rules.
Appendix G. Washington Rules.
These new provisions requiring submission of url’s and advertising material etcetera are unnecessary and overly burdensome overreach. They will harm the public by increasing the demands on attorneys’ time and firms’ resources especially at small, solo, and growing firms–contributing to higher fees without any corresponding benefit in legal services. But I guess that’s what we should want the most as attorneys. So congrats.
First, I don’t believe that the proposed RPC 07.02A and 07.02B are warranted. Attorneys are capable of producing advertising that complies with the RPC without supervision.
Second, I highly doubt that the proposed committee will be capable of reviewing all of the proposed attorney advertising. This is particularly true with respect to websites that involve blogging. Much of the legal content on the internet is being produced for the purpose of building the authority of the attorney creating it. It is a form of advertising with the proposed rule. The volume of that content is huge.
Third, the burden on attorneys is too high. Submitting applications for approval of content will be time consuming, and therefore very costly to attorney who sell their time to make a living. The inconvenience of submitting copies of all public adverting will certainly have the effect of reducing what attorneys are willing to produce in the form of content that may be made available to the public.
Therefore, at a minimum, submitting any material for review by the proposed committee should be entirely optional. Compliance with RPC 07.01 can best be enforced through the process of reviewing complaints alleging violations.
I’ve reviewed the changes to the advertising rules and believe the changes are for the good of the public. I have been troubled by some of the lawyer advertising I’ve seen on television and felt that it likely violated existing rules. These changes make the matter clear.
Rule 7.1(c)- Not only is this rule extremely poorly written, and is extremely unspecific, but opens up a lawyer to RPC violation allegation as a method of competition between attorneys. It does not specify that comparing one’s services to other attorneys generally, based on general experiences, is clearly different than comparing to a specific attorney by name. This also appears to be an attempt to control commercial speech in a way that far overreaches, especially considering that the rest of the rule already clearly prohibits false and misleading speech.
Rule 7.2, 7.2A, 7.2B- These rules seem to do nothing more than create an additional burden on lawyers actively competition in this jurisdiction, while allowing an Laise faire attitude outside. It creates a brand new committee to review, at it’s leizure, and at bar members expense, to make sure that advertising is how the bar wants it. Again, it appears that the bar is using the big firms to squash small and independent businesses, here by dictating speech. 7.2A allows for use of “new articles”, which may have been part of a concerted effort of an attorney by making inquiry or providing calculated information to the journalist, but a firm’s slogan might violate the rule. Any rule such as this should be specific as to individuals, based on specific complaints. Instead it requires attorney already burdened with licensing costs, and regulation (for which is applied in the most political of fashion, and has had no effect on actual professionalism or civility in this state) to be further burdened by a new committee likely to be packed with shareholders at large multi-state law firms or Salt Lake, which will further cause attorneys to be repeatedly submitting new proposals for their advertising each time they want to change something on their website. This will drastically increase already high advertising costs, and will clearly add fees to both the submission of approval of advertising, as well as to bar fees.
I am not sure how the addition to comment 6 of Rule 7.2 accomplishes anything beyond further restricting attorney (and non-attorney) speech without furthering any legitimate interest of the Bar or the general public. The only risk of the type of relationship envisioned by the addition to comment 6, that I can foresee, is that it could deceive the public into thinking the referral service is objective in its referral decisions. But that very risk is already addressed by the very next comment (#7) which requires attorneys receiving referrals from referral services to assure that the referral service’s activities “are compatible with the lawyer’s professional obligations.” If a referral service is deceptive and a knowing attorney accepts a referral from it, the Bar can take action under comment 7.
So, if comment 7 already mitigated the risks involved with the type of relationship prohibited by the addition to comment 6, without prohibiting those relationships, what legitimate interest of the Bar or the general public is the addition to comment 6 serving?
Therefore, my recommendation, obviously, is that the addition to comment 6 not be implemented.
I find the proposed new rules requiring lawyers to annually submit any Universal Resource Locator (URL) they use in advertising and to submit such advertising as mass mailings to be onerous and condescending.
I welcome the requirements regarding identification of non-Utah attorneys. It is also appropriate that firms explain whether the client retains responsibility for costs if the case is not successful. Further, I don’t have a problem with listing my URL’s on a licensing form.
The problems I see are 1. The analysis; 2. The requirements for keeping and providing, as I understand it, copies of our webpages; and 3. Charging a fee to ensure we are in compliance with Bar’s new rule.
The Bar first claims they are filing this to address problems. They then admit there are no problems in this state.
They allege this has been discussed for several years. However, they indicate it was only from early 2010 through late 2012, or less than three years.
The Bar implies they cannot take action without a complaint in these matters. That does not appear to be fully accurate.
The Bar indicates a great majority, i.e., 58%, find lawyer advertising important. Actually, 58% of those surveyed found it important. However, that begs the question of whether the attorneys find changes to lawyer advertising important. We find a great many of our rules important. That does not imply we support changing them.
The petitioners wish to charge a fee for pre-approval, not simply because of cost of administration, but to discourage attorneys from seeking pre-approval. Discouraging attorneys from ensuring they are in compliance with any ethical rule, let alone a new rule, seems a strange stance for the Bar to take.
As I understand it, we are to forward the Bar a printed copy of our web pages. Does this include Facebook, LinkedIn, Google+, Manta, and the many other free pages? Does the Bar understand how much material they will receive each year?
What is the purpose in sending a copy if the Bar is purportedly unable to make a complaint without a notarized complaint?
Why does the attorney need to keep a copy of the advertisement if it is sent to the Bar? Isn’t that a duplication of effort, space and paper?
The bar recognizes that web sites may be constantly tweaked. How does providing a copy of a website once a year demonstrate the status of the site at the time a complaint arises?
Wouldn’t it be easier to put the onus on the attorney to provide proof s/he didn’t violate the rules if a complaint is made?
The petition should be denied and the matter returned to the Bar for fuller, broader consultation.
RPC 7.01: (d) regarding testimonials: it needs to be clearer on whether a testimonial, per se, is prohibited. The appendix containing what several other states are prohibiting lists a testimonial as a per se violation of the ethical rules and is per se “misleading” by its very nature. I respectfully disagree. If a client wants to provide a testimonial about how passionate I was about their case, and about how I was willing to go the extra mile, and how I was a great listener, etc., what is wrong with that? If anything, that type of comment should be welcomed. It gives the public an opportunity to see what others think of my services. Would this mean that any comments an attorney welcomes that are posted on his website cannot be posted, good or bad?
I advertise “STAY OUT OF JAIL”. Does this mean I am in violation of the rules? When my clients come into my office I explain to them the best ways to stay out of jail. They contact me initially to find out how they can accomplish this, as this is their primary objective. I try to be realistic with them and let them know if I think they have a realistic chance, based on the facts of their case, but also tell them what we can do to increase our chances of an alternative form of punishment in lieu of jail.
I have a section on my website that compares my services to other attorneys, distinguishing my awards and experience to other attorneys and pose the question: does the other attorney have this experience? (to get the potential client thinking about what the proper questions are to ask while in the process of selecting an attorney). Is that a violation under the proposed rules since I am technically comparing my services to other attorneys, albeit in a general manner?
Rule 7.02: subsection (i) should be omitted. Placing the burden on every criminal attorney that advertises is onerous on those attorneys as well as the overseeing agency. Alternatively, please consider simply having any person that is complaining against the offending attorney to report that attorney and provide copies of the offending advertisement. This will minimize needless paperwork submitted to the overseeing agency, as well as minimize the onerous duty to print every single ad placed, which will kill the small solo practicing attorney that already has trouble getting everything done to just survive. Please!!!!
The intermediate standard proposed in Harrell v. Florida requires the government to prove that an imposition on commercial speech “(1) promotes a substantial gov’t interest, (2) directly advances the interest asserted, and 3) not more extensive than necessary to serve that interest (in protecting the public from misleading advertising).” The third prong is not met here: asking attorneys to send documentation and a report to the Bar Ass’n or whomever is overseeing the ads before the ad hits is much more burdensome that simply having the complaining party provide the offending material. If the attorney has, in fact, violated the ethical rules, they will be sanctioned immediately and be required to pull the ad. If it happens again they can be disbarred. The offending attorney can also be reprimanded in the bar journal, which will have a deterring effect on others. The public will not be prejudiced in seeing an offending ad if it is only run once or twice before it is caught. The head ache to attorneys in dealing with this, and even the very likely possibility that the attorneys will INCREASE their legal fees to deal with the additional headaches and time required to file this documentation, can only be assumed to pass on to the client/public, which, arguable, ultimately ends up hurting the client/public.
Rules 7.02 is unnecessary. The current rule is adequate.
Rule 7.02A should be rejected in its entirety. The current rules give the bar all the teeth it needs to enforce professional standards in advertising and forcing an attorney to get an advisory opinion and go through a pre-approval process for ads will simply force that attorney to spend more hard earned money on something required by the bar that will benefit no one. If there is a complaint from a member of the public about an ad, the bar has all it needs to take care of the problem as it is.
Additionally, having to spend time on a pre-approval process will hurt the public because it will take attorneys’ time, unnecessarily, that could otherwise be used to provide low-bono and pro-bono services.
Finally, it will have a substantial and disparate negative impact on the solos and small firms who rely heavily on advertising for there business model, as opposed to the larger firms which do not have to dedicate as much of their resources on advertising.
As I read this rule I envision a small advertising ethics committee locked in a dark room in the basement of the Utah Law and Justice Center with no windows, televisions, radios, newspapers, access to the Internet, or any other print or electronic media. Catered food is slid under the door 3 times a day and all the committee’s human needs are met. However, this committee is the scorn of the bar because it seems to consistently fail in its mission. Unethical advertising is rampant and the public is being deceived and taken advantage of by lawyers all over the great State of Utah. It is like Gotham City right here. Bar administrators are beside themselves as to what to do with this committee because they believe they have tried everything. They decide to form a think tank.
The think tank struggles for many hours about one big problem that seems to be at the heart of the Committee’s failures—just how to find those many violations that are so rampant. Finally, when the problem seems beyond hope of a solution, someone has an idea! “Why don’t we get the lawyers to submit all their advertising to the Committee just like the IRS does with taxes? We could then slide the information underneath the door with the food and the committee could review it for possible violations.”
Well, for obvious reasons this idea is roundly accepted by the think tank and new regulations are written and proposed. These new rules may not punish evil doers, but at least now we will know who they are just in case there are enough resources to go after them some day.
I object to the filing requirements for advertising for small firms. It appears that the rule will unnecessarily burden too many attorneys without a complaint even being filed. If there is a specific complaint about a specific attorney, let that attorney respond. It makes more sense for both the bar and the attorneys. Moreover, this seems to unfairly target smaller offices who are less equipped to do this than the larger offices are.
I was on the advertising committee (and never been informed that I’m not) and I guess it’s a bit frustrating that that committee never really functioned, and felt that it had no ability to do anything, despite known examples of violations of the advertising rules. Now, we’re facing a rule that penalizes a lot of attorneys who have not necessarily done anything wrong.
I think the proposed new rules involving getting permission to publish something in advertising and having the Bar approve my website is – well – clearly a First Amendment violation. I see this as a make work project that is a remedy for an illness that does not exist. I do not have an IT department. I have to do all of this work myself. If someone is doing false advertising turn it over to the Attorney General’s office for prosecution.
“Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint ”
Are the amendments and additions being made to clarify or address a problem. If to clarify, there is no reason for such clarification. The current rules are clear. To the extent and attorney is confused and unable to determine whether their advertising conforms to the rules, advisory opinions are available through the bar. To the extent that the changes are aimed at clarifying existing rules, they are a solution without a problem. If the changes are aimed at actual abuses in the market place, the problem lies not with the current rules but with enforcement of those rules. I urge the committee to specifically state openly the reason(s) for the proposed changes so that we may all discuss whether the changes actually address a problem.
The changes seem very unrealistic in the modern age and seem based on a serious misunderstanding of SEO and social media. As an attorney with a web site who actively engages in social media, must I submit copies of every post whether it be to my own blog, others’ blogs, Facebook, Tweet, Pinterest, etc.? Given the lightening speed with which modern media changes, updates, self corrects, and becomes antiquated,it seems the the requirement is akin to taking a snap shot of water flowing down a river–or does the bar really wish the flood waters to run so deep that any regulation will be impossible?
I also see that the changes put solo and small firms at a disadvantage to the large firms–who have dominated the field.
Why not just have the attorney certify each year that his/her electronic advertisement is true and accurate? It may be certified in the same manner as the trust account certification. I have no objection to listing the URL.
The proposed changes to the advertising rules for attorneys appears to be designed to push us back to the days when advertising was limited to “name, rank and serial number,” a giant step backward for attorneys and consumers of legal services alike. Many attorneys provide legal information, free to the public, via websites, Facebook or Twitter accounts, and similar media, which appear to be “advertising” under the proposed rules. The number of posts (ie, advertising) can be substantial even for a sole practitioner or small firm. Demanding submission to the committee prior to publication is tantamount to prohibiting timely communications in a public forum by attorneys. This is an impermissible prior restraint of speech, even commercial speech.
The cost of compliance and enforcement will undoubtedly result in substantial increases in bar fees to fund this paternalistic undertaking, with no real positive impact on the profession or the public. Just managing the required filings will be an undertaking of substantial financial proportions. When those costs get passed on to the bar, we will, naturally, have to pass the increases along to our clients. I imagine we’ll all tell them why – after submitting our proposed communications for preapproval.
The pre-approval process will be of no value to the electronic poster. The turn-around time of 30 days is far too slow – today’s current topic can be very old news in 30 days. Small firm and solo practitioners, particularly those just starting out, will be especially affected. They may be forced to choose between serving the rules or serving their clients. If they choose the rules, they may have no clients. If they choose the client, they may have no license. Horrible choices.
It is currently a violation of the Rules of Professional Conduct to publish and distribute false or misleading advertising. Yes, we do have a few that persist in doing so anyway. We also have a few with distasteful or even repugnant advertising. We cannot legislate good taste; the distasteful and repugnant will remain. The rules haven’t prevented false or misleading statements, and the new rules will not do so either. Enforcement will undoubtedly continue to be by complaint, despite the requirement that attorney’s deluge the bar with advertising material daily. Most violators will continue to escape detection.
Bottom line? I see a substantial increase in costs with no real benefit to anyone, except, of course, the new employees hired to manage this morass.
I am opposed to the proposed advertising rules 7.02A and 7.02B. I believe they are burdensome, overreaching, and unnecessary.
Frankly, the rule is very confusing to me. I am not sure if I am just lacking in sufficient intelligence to understand it (which I take the risk of exposing by sending this post) or it just does not make sense.
It seems that Rule 7.2A sets forth a requirement that all advertising be submitted to the “Advertising Review Committee.” However, it then turns around under paragraph (e) and says that you don’t have to submit advertising as long as it contains only part or all (whatever that is supposed to mean) of a laundry list of types of advertisings/information and if it also complies with the requirements of Rule 7.2 (a) through (c) (note that this is 7.2, not 7.2A) and all of Rule 7 if it is applicable (again, I am not sure what that is supposed to mean, but it seems pretty lazy on the drafter’s party).
But 7.2(a) through (c) only defines the word “advertisement,” exempts advertisements in other jurisdictions (leaving us free to exploit the hapless folks across state lines since they are not worthy of the apparently necessary higher protections offered by Utah), describes what must be done if you use a really handsome (or pretty) substitute for your ugly mug (speaking of my own mug here only and not implying anything to any of you), and requires that the advertising contain your name or firm’s name.
So, if I am reading this right, if you are willing to put your name and your face (if applicable) on the ad, you don’t have to go through the hassles of submitting all your ads to committee (unless of course you are violating some other provision of the entire Rule 7). Am I understanding this correctly? Probably not since that would seem like much ado about nothing and I doubt that someone would have put this much thought into something so pointless. But then again, perhaps I am mistaken about the “much thought” part.
For the same reasons as already articulated in other comments to these proposed rule changes, I add my opposition to these changes due to their confusing and overreaching nature.
I am against Rule 7.02A, specifically the portion requiring every lawyer to submit every advrtizing to the Bar. It seems that such an obligation will be really burdensome on the law firms and will take a lot of resources of the Bar. There is a process when lawyers can complain about other lawyers’ ads if they violate the Rules. However, I do not see the need to police all advertizing in a broad sweep. How much really will it cost? Did anybody calculate? What are the benefits versus the cost? I think cost-benfit analysis is important to perform.
I join those who have expressed opposition to the proposed new rules regarding lawyer advertising. These new proposals, if adopted, will no doubt prove to be extremely onerous and burdensome, particularly upon solo practitioners and small firms. I am also concerned about imposing further restrictions upon the free speech rights of attorneys. Let’s work within the existing rules. If someone has an objection to a particular lawyer advertisement, let them file a complaint and have it reviewed. Otherwise, let’s not change the rules to make them extremely onerous and burdensome to comply with. Finally, as others have stated, these new proposed rules are extremely confusing and poorly drafted.
Rule 7.2A(b) is broadly written to require reporting of any website that the lawyer “uses.” Does this include Facebook? Twitter? LinkedIn? Avvo? Justia? LawQA? What about sites that re-post this information. Any attorney with a listing on Justia is also listed on it’s sister site through Cornell. Anyone who has ever answered a question for the LawQA site has probably had their posting re-posted on one of LawQA’s many sister sites. Is reporting of these sister sites’ URL’s required?
Rule 7.2A(a) requires that copies of any “solicitation communication” be filed with the bar “no later than the . . . sending by any means, including . . . digital. . . . ” Does this mean that anytime a person posts a blog or publishes a new page on a website, that such “communication” has been sent to the entire online world. Does this rule require the submission of any of these communications that are posted online?
The current rules seem adequate to address current advertising abuses . . . if the current rules were enforced. The new reporting requirements seem excessively burdensome, especially for small firms and solo practitioners who do not have the benefit of having an IT department and a large advertising budget.
I add my opposition to the proposed amendments for reasons others have explained. The proposed submission requirement creates an undue, unnecessary, time consuming, and expensive burden. Micromanagement is discouraged in almost all contexts. The rules should be based on general principles, and the members of the bar should be entrusted to manage their advertising based on those principles. Specifics can be addressed via advisory opinions, contacting the bar, complaints, case law, education, etc. Any amendment ultimately added to the existing advertising rules should be simple and should not require submission of advertisements to the bar. I do not object to the submission of the url of one’s firm or practice.
In 1977, as quoted in the May edition of the Chamber of Commerce publication, Nation’s Business, Bert Lance, President Carter’s OMB Director, announced that he believed the government could save money by adopting a simple motto: “if it ain’t broke, don’t fix it. He explains, That’s the trouble with government. Fixing things that aren’t broken and not fixing things that are broken.”
And so, here we are in 2013, with the Utah State Bar still failing to learn that basic motto. I propose instead a simple rule that obeys that motto: No new bureaucratic proposals unless that bureaucracy is absolutely necessary to protect Utah clients and the professional nature of the Bar. The Bar’s rulemaking petition, however, makes it very clear that its proposal is unnecessary to further either of those interests. Not only does it admit no current attorney advertising problems, but the 2012 Bar Counsel’s report shows that of all complaints reported to the Bar that year, approximately 1.8% consisted of advertising complaints. While it may be true that attorney advertising complaints will increase in the future, is the increase in bureaucracy, the burdensome nature of filing, and the stifling of free expression the best way to deal with future hypotheticals?
If the Bar and the courts are truly concerned with reducing Bar complaints in the present or in the future, then perhaps they should proffer a rule that requires attorneys to file with the Bar each time they make a withdrawal from a trust account. This makes more sense since trust account violations account for many times the number of complaints than advertising does. Indeed, those violations appear to have been present in almost all disciplinary actions published last year. (Perhaps this is just another example of fixing things that aren’t broken and not fixing things that are broken). If requiring the filing of advertising is presumed to lead to a decrease in already non-existent attorney advertising violations, then requiring the filing of trust account withdrawals will surely reduce the villainy associated with that type of activity.
The Petition asserts that its proposal was spurred on by actions taken by the high courts of Florida, Texas, and Nevada, all of which require filing of attorney advertisements. According to the Petition, those states’ regulators noted that their systems were mandated due to an “uptick” in complaints. This begs the fundamental question of why would Utah want to look at Florida’s advertising regimen as a model in any manner? This is a state that disciplined lawyers for using a pit bull in an advertisement. The Florida Bar v. Pape, et al., 918 So.2d 240 (Fla. 2005). It is also a state that has a general population of 19 million and almost 100,000 lawyers. The numbers alone, over and above that state’s generally aggressive response to advertising helps explain why it chose mandatory filing. The numbers also highlight that it is nothing like Utah. Similarly, Texas has approximately 84,000 lawyers and a population of 26 million. Larger numbers and an equivalently large number of complaints (the reported “uptick”) may justify additional bureaucratic responses, but such a response is not justified where those numbers and complaints are not present.
Though Nevada’s population, both generally and of lawyers, is equivalent to Utah’s, that similarity does not mandate or justify an identical approach. Before its filing requirement, Nevada’s advertising rule was a First Amendment violation waiting to happen (this conclusion is based not only on my personal review of the rule, but a comment made to me by Kristina Marzec, the reporter for the committee that approved the original filing rule). Given that the Nevada Supreme Court had already evidenced a desire to closely scrutinize attorney advertising for taste and decorum, the decision to approve a filing requirement substituted for the constitutional invalidities of that prior system while allowing for more monitoring.
Utah’s current rules do not suffer from similar constitutional problems. The advertising rules here do not unconstitutionally impose standards of taste and decorum and, thus, there is no need to replace those written rules with the unwritten preferences of a committee of fellow lawyers (who, simply because they are people, will use their own preferences in making decisions). Regarding Utah’s attorney advertising rules, they are on the other side of the chart in terms of regulation from those issued by Nevada (especially pre-filing), Texas, and Florida. I note, however, that Nevada’s rules, as defined by that high court’s guidance (again according to Ms. Marzec) do not mandate filing of websites or other Internet ads while Utah’s, though requiring only filing of the URL for the website, would appear to enjoin attorneys from publishing other types of Internet advertising without concurrent review. Despite this inconsistency, Utah’s current rules are far closer to those issued by the Washington Supreme Court, which the Petition presents as an example, apparently, of what not to do since, one must assume, Washington State is a cesspool of attorney advertising horrors much like Utah will soon be.
Attorney advertising rules are in a nationwide state of flux. While some states are adopting filing requirements and, like Florida, instituting draconian regulations, the American Bar Association, with its Ethics 20/20 Commission appears headed in the other direction – toward a more libertarian approach. Over the past few years, circuit courts of appeal have issued decisions over rules issued in New York, Louisiana, and Florida. These court fights have cost both state regulators (in other words, taxpayers and Bar members) and a similar potential in Utah should be considered when calculating the costs and benefits of this proposal. Because even if the proposal gets federal court approval, fighting the battle will cost.
Perhaps a better approach than emulating Florida, Texas, and Nevada, is to wait until the ABA has finished its overall review so that it can give equal credence and consideration to that nationwide assembly of experts in the field of professional ethics. At that time, Utah will have the benefit of listening to all sides and gaining the perspective of comprehensive approaches.
Finally, the Petition heralds a survey result showing that 58% of attorneys believe it is important to “monitor advertising.” While an interesting number, it is naked and devoid of context. First, were the questioned attorneys informed what “monitor” meant? Did they know it meant filing and scrutiny of almost all pieces of advertising material or did they assume that “monitor” meant that the Bar should simply keep an eye out for blatant advertising problems, which are readily apparent on billboards, newspapers, and other media channels. Thrown in without context, the 58% statistic may mislead the reader into believing that this percentage of attorneys support mandatory filing. (Perhaps the Bar should read its own rules about misleading material). Second, and perhaps more fundamentally, if advertising rules are to be decided by majority vote of the Bar membership then the rules should be open to voting by all members, not just the selected survey participants.
In sum, changes in Utah’s rules should await the ABA’s exhaustive and comprehensive study and should not be guided by decisions made in states that have problems and aggressive regulatory traditions that Utah has not shared. The Petition should be rejected in its entirety.
The proposed rules are onerous even for large firms as the amount of material generated weekly and monthly can be substantial. The proposed system asks marketers to submit material ahead of time for a fee or take a chance of producing materials and submitting them to the Bar at the same time the materials are distributed to the intended target. If we miss the mark according to the new rules, we are punished. The Bar does not have the capacity to implement and run the proposed approval system in the promised 30 days.
The potential inability to state facts, such as lawyer accomplishments, is ludicrous and ultimately makes every lawyer seem equal in very bland ways. This is not a service to potential clients. Lawyers should be able to state their achievements and most currently do without aggrandizing.
Labeling everything as Advertising is the fastest ticket to the trash can so why would any of us bother to create print materials?
7.2 (b) states an advertisement using any actors to portray a lawyer, members of the firm, etc., must be disclosed—what? I checked this out with Bar prior to developing a new brochure and was told if I did not infer the models in the stock photos were our lawyers, there was no problem. Do you think prospects will be upset if their lawyer does not look like one of those in a stock photo? Reasonable people are inundated with advertising message and stock photography daily and understand how it works.
I’m assuming our logo and website address adequately addresses Rule 7.2(c) to show we are responsible for the content of an advertisement. Does any firm create material that does not identify the firm? Interesting.
Comment 1 for Rule 7.2 states advertising “involves an active quest for clients,” but the proposed rules tie the hands and feet of anyone honestly trying to attract new clients.
Finally, in Rule 7.2A(e)(21) —“a solicitation communication that is not motivated by or concerned with a particular past occurrence or event of a particular series of past occurrences or events and also is not motivated by or concerned with the prospective client’s specific existing legal problem of which the lawyer is aware—I think this is exempt, but lost track so far down on the list of what was and was not exempt from the original Rule. Exactly what would be in a solicitation letter that did not include anything in (e)(21)?
There are a few, very blatant existing Rule breakers. Why not take care of these and then see what problems remain.
Enacting Proposed Rules 7.02A and 7.02B of the Utah Rules of Professional Conduct is unwise because they act as a prior restraint, shift the burden of proof from the government to the attorney seeking to advertise, contradict Tenth Circuit law, and are costly and unnecessary. Consequently, Proposed Rules 7.02A and 7.02B should not be enacted into law.
1) Rules 7.02A and 7.02B act as a prior restraints and the Tenth Circuit applies the doctrine of prior restraints to commercial speech
It is uncontested that attorneys may advertise their services. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). It is also uncontested that commercial speech is entitled to some protection by the First Amendment. Id. (citing Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748 (1976)). The current issue is whether nearly all legal advertisements must now be subjected to a fee, subjected to review, and subjected to approval from the Advertising Review Committee of the Utah Bar Association prior to mailing or sending the advertisement “by any means.” Rule 7.2A(a).
As the Supreme Court explained in Vance v. Universal Amusement Co.,”[t]he presumption against prior restraints is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” 445 U.S. 308, 316 (1980).
Although the Supreme Court has indicated that commercial speech may qualify as one of the exceptions to the bar on prior restraints, (see Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557, 571 n.13 (1980)), the Tenth Circuit has explicitly indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech. In re Search of Kitty’s East, 905 F.2d 1367, 1371-72 & n.4 (10th Cir. 1990); see also, New York Mag. v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir. 1998); Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996).
Thus, it would be unwise for the Utah Bar Association to enact rules 7.02A and 7.02B to bar nearly all attorneys (and likely all solo practioners and small firms) from advertising prior to paying a fee and receiving a de facto permit to advertise their services. Furthermore, it would be unwise to purport to proffer jus tertii as a defense based on the actions of the Nevada, Texas, Florida, and Washington State Bar Associations.
2)Rules 7.02A and 7.02B shift the burden of proof from the government to the attorney in multiple ways
Commercial speech is protected by intermediate scrutiny places the burden of proof on the government to show: (i) that it has a substantial interest in regulating the advertising, (ii) that the means chosen to regulate directly advance the interest, and (iii) that the means are no more extensive than necessary. Central Hudson Gas, 447 U.S. at 557. Rules 7.02A and 7.02B effectively vest the power of the courts in the Utah State Bar Advertising Review Committee to determine when an attorney’s future speech is “implicitly false” and consequently shift the burden of proof from the government to the attorney seeking to advertise her services.
Additionally, the Tenth Circuit has held that for a particular mode of communication to be inherently misleading, that “concern about the possibility of deception in hypothetical cases is not sufficient to rebut the constitutional presumption favoring disclosure over concealment.” Revo v. Disciplinary Bd. Of the Supreme Court of N.M., 106 F.3d 929, 933 (10th Cir. 1997). Rules 7.02A and 7.02B are likewise attempting to allow the Utah State Bar Association to determine whether an advertisement is inherently misleading based solely on the concern about the possibility of deception in hypothetical cases. Consequently, this act is insufficient to rebut the constitutional presumption favoring disclosure over concealment. Id. Thus, it would be unwise for the Utah State Bar Association to enact Rules 7.02A and 7.02B.
3) Rules 7.02A and 7.02B contradict the Tenth Circuit’s holding that a state bar seeking to discipline an attorney based on an allegedly inherently misleading advertisement must produce evidence that someone was actually deceived.
The Tenth Circuit has also held that for “a particular mode of communication to be inherently misleading,” that the bar’s disciplinary board must offer evidence that someone has actually been deceived by the ads. Revo, 106 F. 3d at 933. Proposed Rules 7.02A and 7.02B will eliminate the requirement that any individual be deceived by the ads because the bar seeks to determine the purported inchoate offense of “attempting to deceive.” Thus, it would be unwise for the Utah State Bar Association to enact Rules 7.02A and 7.02B.
4) Rules 7.02A and 7.02B are costly, are guaranteed to increase bar “dues” (i.e., fees paid to engage in the practice of law in the State of Utah), and are unnecessary.
According to the ABA Division for Bar Services memorandum dated March 12, 2012, The Utah State Bar Association dues rank sixth out of all seventeen western states. Both Washington and Nevada have higher bar dues than Utah. Both of these states also have mandatory advertisement filing for nearly all attorney advertisements. (The only reason that the Texas State Bar Association does not have higher bar dues than Utah is because its bar is over eight times larger than that of Utah, not to mention it is nearly ten times larger than the Nevada bar, and more than twice the size of Washington’s bar). So, it both logical and likely that the implementation of a “Advertising Review Committee” that will review nearly all advertising materials from approximately 10,500 attorneys will increase expenditures by the state bar. The argument that fees will not “increase” because the attorney seeking to advertise will have to pay a “required fee” each time she decides to change her marketing materials, is a de facto increase of “bar fees.” Thus, the increase is guaranteed. Furthermore, as the cost of advertising legal services increases in an already battered legal market, of a verity, the solo practioners and small firms will be the ones to pay the lion’s share of the costs associated with the proposed regulation. Ultimately, the current rules are sufficient and should not be altered.
This proposed rule imposing a new duty on all licensed attorneys to provide paper copies, and URL’s, of all advertising for review, is a bad idea. Would not this additional burden create out of proportion expenses and inefficiencies in order to address a problem that does not appear to exist? Also, the new proposed process seems to ignore that advertising itself is a public act that inherently discloses itself at the very same time it springs into existence. Because advertising is by it’s very nature complete disclosure of itself, further disclosure in the form of ‘mass mailings’ of paper copies is unduly burdensome and exceptionally redundant. The burden will be particularly hard on those seeking to work outside of last century’s ‘Big Firm’ model. Utah’s very few ‘Big Firms’ may be able to allocate resources and pass on the labor cost to clients, but solo practitioner’s will likely be bogged down by the new requirements.
I have read that of all complaints made against Utah attorneys, only 1.8% involved issues relating to advertising. If this is true, there only a very remote need for such control by the Bar. I have also heard that this issue is arising because other states have passed similar rules, due to problems with advertising in those jurisdictions. Texas, Florida, etc., may need measures like this, but it is not apparent that Utah does with statistics this low. In general, adding additional burdensome requirements to an already burdened solo practitioner’s “unbillable duties”, should at the very least address an actual problem. We have done just fine with the current level of control exercised by our Bar. Is this new measure really needed? It appears the public is already protected.
There will be additional cost. Whether volunteer man hours, or paid staff, who will review the thousands of ads? Will the newfound discretion to reject ads lead to heavy litigation on advertising rights? We are opening up new areas of contention and litigation, where time and money must be allocated, rather than to something useful or helpful. Will our dues go up? Or better, can it be promised that they won’t?
Most importantly, in my mind, is that the requirements are unnecessary, even if there is a problem like the one only imagined here, as it asks attorneys to provide paper copies of what is already within reach of any functionary’s internet browser. An ad seeks to be found, it does not hide. If there was a misleading or false advertisement made, client’s will complain, and a regulator can immediately verify the nature of the ad, and act accordingly. With this new proposed way, the functionary will spend their time reviewing huge amounts of perfectly appropriate ads, (as history makes clear) and when no false advertising appears she/he will find some to justify her position. It is human nature to do so.
To summarize this rule represents fully the phenomena of imagining a problem into existence, addressing that imaginary problem with a wasteful and burdensome ‘solution’ of mailing unnecessary hard copies of web pages that are easily retrieved by anyone. If the bar wants to concern itself with these matters then at least do so intelligently. Finally we attorneys are interested in caring for our clients and the public, it’s our job if not our very identity, and I hope I hurt no one’s feelings when I say it is not the Bar and it’s threats of punishment that makes this so. This rule helps to vilify the profession and teaches the public we are not to be trusted. The public will think, well if there is rule, there must be a big problem. They will never know it was a mere ‘potential’, and very little actual wrongdoing.
If for no other reason than its misplaced reliance on the 2010-2011 Dan Jones survey as justification for the rule changes, the Bar’s Petition should be denied.
Although the Bar seems to interpret the survey as some form of mandate to solve a problem it admits does not yet exist, the connection between the relied upon survey question and the Bar’s proposed rule changes is tenuous at best.
How is it possible that the Bar spends years studying the issue, takes the time to develop survey questions about attorney advertising, and then fails to ask the most important question of all: Are the current advertising rules adequate?
The leap between monitoring and establishing new rules, with a new Bar committee, is simply too far.
In this same study, 49% of responding attorneys indicated they did not advertise, but 59% indicated they had a web site. At least to me, that’s a strong indication that the Bar’s view of advertising and Utah attorneys’ view of advertising don’t correlate as well as the Bar leads the Court to believe.
Furthermore, there seems to be no accounting for the Bar resources that such an undertaking will consume. Is the Bar so lacking in meaningful work that it can devote significant resources to solving problems that don’t yet exist? It seems to me that a proposal like this should require a budget and some cost-benefit analysis before being adopted? I don’t believe Utah attorneys should write a blank check to solve hypothetical problems.