Posted: October 28, 2014
Rules of Professional Conduct
RPC 07.01. Communications Concerning a Lawyer’s Services. Amend. In light of comments received regarding the originally proposed rules, the Court’s Advisory Committee on the Rules of Professional Conduct and the Utah State Bar prepared amended rules. These rules provide additional guidance to lawyers as to which communications are false or misleading in order to protect the public. Submission of advertising to the Bar as mandated under the earlier proposed rules is no longer required.
RPC 07.02. Advertising. Amend. In light of comments received regarding the originally proposed rules, the Court’s Advisory Committee on the Rules of Professional Conduct and the Utah State Bar prepared amended rules. These rules provide additional guidance to lawyers as to which communications are false or misleading in order to protect the public. Submission of advertising to the Bar as mandated under the earlier proposed rules is no longer required.
RPC 07.03. Solicitation of Clients. Amend. In light of comments received regarding the originally proposed rules, the Court’s Advisory Committee on the Rules of Professional Conduct and the Utah State Bar prepared amended rules. These rules provide additional guidance to lawyers as to which communications are false or misleading in order to protect the public. Submission of advertising to the Bar as mandated under the earlier proposed rules is no longer required.
The essence of RPC 7.01(b) is already covered in rule 7.1(a) and other rules of professional conduct. The terms “unjustified” and “unreasonable” are too subjective when compared to more objective terminology such as “material misrepresentation” in rule 7.1(a). Also, an attorney cannot be expected to manage “expectations” of which he cannot know and which often occur even with ample disclosures and continual assertions of a kind meant to limit those expectations. The one-sided “expectations” standard puts too much control in the hands of an upset and vindictive client. Why create a standard separate from the more objective and less ambiguous “material misrepresentation” standard?
Proposed Rule 7.2(b) is unduly burdensome as to website photography and unlikely to bring any real protection to prospective clients in that respect. Video advertising should be subject to this rule, but web photography should not. New lawyers in particular need to use stock photography in order to afford the benefit of a professional website that the more established firms enjoy. A new lawyer should be able to portray professional looking photos consistent with the level of practice they perform without paying for a professional photographer. Consumers are accustomed to stock photos and can often distinguish between stock and real photos by the representation of names, titles, etc. that often accompany non-stock photography.
Proposed Rule 7.03 appears to extend the prohibition on real-time communications to existing clients known to be in need of legal services. If so, I find this rule impracticable and I object to its expanded scope. It fails to serve the interests of the client or the attorney in an ongoing and mutually beneficial relationship. The rules need to assume that clients have the will power to cease using an attorney’s services where said services are no longer satisfactory.
Almost every aspect of Rule 7.3, including the proposed changes, are completely ridiculous and sweepingly broad for the stated purposes within the rule. Rule 7.3 is reminiscent of the movie Minority Report, where Tom Cruise worked on a team punishing “pre-crime” because someone might commit a crime sometime in the near future. A Utah attorney cannot even call Bill Gates or President Obama to offer their services because they, the attorneys, may possibly exercise some undue influence over the richest and most powerful people on Earth. Really? We also cannot hire a salesman to do if for us because salesmen who work for attorneys somehow become dangerous when both prior and after working for the attorney, they were relatively benign salesmen. Again…really?
Though a number of states follow the ABA model rule, many other states permit in person solicitation. From a quick Google search I found that VA, NJ, MO, ME, NH, CT, and RI permit in person solicitation. Even CA and DC, some of the most regulated places in America, allow in person solicitation. Others probably also allow it, but they don’t come up on the first page of Google. California has yet to fall in the sea and the other states have not yet collapsed into societal ruin. In fact, they seem to be doing fine.
I had a NY lawyer ask me who he needs to take to lunch to start obtaining business around here. I explained to him rule 7.3 and he was appalled we had to market under such draconian regulations.
Soliciting via in person and real time communication is by far the least expensive method of solicitation. Further, no shortage of legal work exists if we can only let the public know about our services. The vast majority of the population of Utah does not have an estate plan. Most LLCs do not have an operating agreement. The public is increasingly turning to non-lawyers to draft their contracts and online services to obtain their estate plans. We can stop this bleeding from the legal economy best by marketing our services effectively. Television and print ads are only effective if one has tens of thousands in a marketing budget.
Ultimately Rule 7.3 only serves as a protectionist device to prevent new attorneys and associates from competing with the more established attorneys. Rule 7.3 should be eliminated in its entirety. The proposed changes restrict access to work even further because, as we were previously not permitted to solicit prospective clients, we will no longer even have the ability to call potential employers to ask for a regular full time job. This may even apply to finding a job outside of the legal field.
Why are we strangling the members of the Bar with regulations?
RPC 7.03 seems not to allow an attorney to contact a prospective client when the name and contact information for the prospective client has been referred to me by another attorney or another person, perhaps a family member of the prospective client. For example, John Doe calls or sends an email to me informing me that Jane Sparks has a particular problem with which John believes I can be of help and asks me to call Jane and then provides me her contact information. It would appear under RPC 7.03 that I would be in violation if I contacted her because it would appear that I am soliciting her for pecuniary gain. At least I do not see any exception for this kind of example that often occurs.
This comment relates to RULE 7.2 – ADVERTISING.
The last sentence of Comment 1 to Rule 7.2 states, “[A]dvertising by lawyers entails the risk of practices that are misleading or overreaching.” Overreaching may occur when there is one-on-one or real-time contact. The important thing in mass media advertising is to make sure it is not false or misleading. This is covered by Rule 7.1 (incorporated into Rule 7.2), which clearly precludes communication that is false or misleading.
The U. S. Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350, 364, 97 S.Ct. 269, 53 L.Ed.2d 810 (1977) struck down attorney advertising bans. Nevertheless, the tendency of State Bars has been to restrict and limit truthful and non-misleading advertising.
THE FTC STRONGLY URGES STATE BARS TO PERMIT ADVERTISING THAT IS NOT FALSE OR MISLEADING.
The FTC letters to the New York State Bar and the Louisiana State Bar are found on the internet:
http://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-office-court-administration-new-york-state-unified-court-system-concerning/v060020-image.pdf and
http://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-louisiana-state-bar-association-concerning-proposed-rules-lawyer-advertising-and/v070001.pdf
The New York letter (p. 2) states that “imposing overly broad restrictions that prevent the communication of truthful and non-misleading information that some consumers may value is likely to inhibit competition and frustrate informed consumer choice.”
As to paid endorsements, the audience reasonably expects the endorser to be paid. If not, “requiring disclosure rather than prohibiting such endorsements protects the consumer while encouraging the truthful flow of information to consumers.” (p. 4)
The Louisiana letter (p. 2) expressed concern that when competing attorneys decide what advertising is permissible, that “may deter truthful and non-misleading advertising and present risks to competition.”
As indicated in the Louisiana letter (p. 3), New York incorporated nearly all of the FTC suggestions. Louisiana did not change its proposed amendments as much, and its ethical rules failed to fully comply with federal law. Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011).
AN ADVERTISEMENT CANNOT BE BARRED AS FALSE OR MISLEADING WITHOUT GOOD PROOF.
In the case of Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990), an attorney was censured because his letterhead noted he had an NBTA certification. The justification for prohibiting such a notation was that it was potentially misleading. The Court reiterated that “the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.” Id., 496 U.S. at 100.
The Court stated that there must be evidence of deception before an advertisement can be categorized as “actually misleading.” Id., 496 U.S. at 106. It then stated that a potentially misleading communication does not justify “a categorical prohibition against the dissemination of accurate factual information to the public.” Id., 496 U.S. at 109.
The Court did note that it could be misleading “if the certification had been issued by an organization that had made no inquiry into petitioner’s fitness, or by one that issues certificates indiscriminately for a price.” Id., 496 U.S. at 102.
THERE IS A HEAVY CONSTITUTIONAL BURDEN TO RESTRICT TRUTHFUL AND NON-MISLEADING ADVERTISING.
The case of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) and its progeny set forth strict criteria that courts must apply to permit restrictions on truthful and non-misleading advertising.
Specifically, (1) there must be a substantial state interest warranting the restriction; (2) the restriction must substantially further that interest; and (3) the restriction must not be overly broad. Furthermore, the entity restricting commercial speech has the burden to prove the criteria are satisfied: “[T]he First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement.” Id. 447 U.S. at 572.
RULE 7.2 MUST CLEARLY COMPLY WITH THE UNITED STATES CONSTITUTION.
There is no substantial state interest furthered by precluding payment to a person for recommending the lawyer’s services in a truthful and non-misleading advertisement.
Therefore, the list of permitted advertising costs in Comment 5 to Rule 7.2 should specifically include such a payment. That is, the third sentence of that Comment should read something like: “Paragraph (f), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio air time, domain-name registration, sponsorship fees, SPOKESPERSONS RECOMMENDING THE LAWYER’S SERVICES, internet-based advertisements, and group advertising.”