Lawyer Advertising under the Model Rules: What’s Changed?

Before advertising your legal services, it’s always a good idea to orient (or re-orient) yourself with the rules governing attorney conduct in your jurisdiction. As technology evolves, so too does your marketing and your ethical obligations related thereto.

Here’s a quick guide to a few recent changes to the American Bar Association’s (ABA’s) Model Rules for Professional Conduct (Model Rules), which most states follow, at least to some extent. Always be sure to consult your own rules of professional responsibility, however.

1. Why change the Rules at all?

Prior to diving in, here’s some context behind the new advertising-related amendments.

Originally drafted in 1977, the Model Rules didn’t contemplate several marketing platforms lawyers now use daily, such as the internet or social media. The revolutionization of how attorneys promote and offer services to clients triggered more than three years of study, outreach and review by the Association of Professional Responsibility Lawyers (APRL).

The APRL’s conclusion: the rules were outdated.

As a result, Amended Model Rules 7.1 through 7.5 were passed on August 6, 2018. See Amended Rules here.

2. Defining “to advertise”

Before the revised Model Rules were promulgated, lawyers, who are trained to question the meaning of words, could interpret the term “advertise” narrowly.

In order to clarify its intent, the ABA struck the word “advertise” in the Model Rules and replaced it with an ostensibly broader term, “communicate.”

The ABA also deleted the limitation of communications to written, recorded or electronic media, so that the Model Rules would apply to all media advertisements. 

3. Illustrating what it means to mislead

The adopted Model Rule 7.1 did not change, but the comments to it did.

Model Rule 7.1 provides:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

The new comments to the Model Rule add, in pertinent part:

• A truthful statement you make is misleading if it creates a substantial likelihood that a reasonable person would believe your communication is requiring them to take further action when, in fact, no action is required.
• You can’t make an unsubstantiated claim about your services or fees, or an unsubstantiated comparison of your services or fees with those of other lawyers or law firms, if presented with such specificity that a reasonable person could conclude the comparison or claim can be substantiated. 
• Your firm name, letterhead and professional designations are communications concerning your services.
• You can’t imply or hold yourself out as practicing with other lawyers in one firm if you aren’t actually a part of the same firm.

4. Explaining acceptable gifts

Another area the ABA wanted to make more black-and-white in terms of advertising was the giving or receiving of gifts in connection with legal services.

While in everyday life it’s certainly normal to exchange some type of gift after receiving an exceptional service, Model Rule 7.2 makes it clear you can’t compensate, give or promise anything of value to a person who recommends your services, except in certain limited, enumerated circumstances.

One of those circumstances that’s now included in the Model Rule is that you can give nominal gifts of appreciation that aren’t intended to or reasonably expected to be a form of compensation for your services. The comments specify that “[t]he gift may not be more than a token item as might be given for holidays, or other ordinary social hospitality.” 

5. Clarifying solicitation

As you are probably aware, you generally can’t solicit your professional employment.

The changes to Model Rule 7.3 clarify this general principle.   

The new amendment to Model Rule 7.3(a) defines what it means to solicit work and reads as follows:

“Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm 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, or reasonably can be understood as offering to provide, legal services for that matter.”

As one commentator explained in an ABA blog post, the purpose behind the change was to codify a variety of rules and policies of different bar associations that concluded (1) a solicitation is a communication that you direct to a person and (2) you cannot solicit business unless it’s with another lawyer or person who previously knows you or uses your business.

Staying current on your state’s rules of professional conduct when advertising your services is a critical to your practice—protecting you and your clients. While we’ve highlighted some of the changes to the Model Rules, you should consult your own state or local ethics rules prior to launching your next marketing initiative.