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The Latest Ethics 2000 Commission Proposals for Revisions to ABA Model Rules of Professional Conduct for Lawyers: Summary and Comments

On February 21, 2000, the American Bar Association's Ethics 2000 Committee released a draft of proposed revisions to the ABA's current model legal ethics rules.

See Draft Rules and Explanatory Memos for Public Comment for all of the proposed changes and commentary.

Among the changes proposed are several pertinent to lawyers' web publishing efforts and other Internet-related marketing strategies.

Communications Concerning a Lawyer's Services

Rule 7.1 bans false and misleading communication about the lawyer or the lawyer's services. The current model rule also endeavors to specify particulars about what will comprise "false or misleading" communications.

The proposed revision to Rule 7.1 — Communications Concerning a Lawyer's Services — shortens Rule 7.1 to this simple statement:

"A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services."

The Reporter's Explanation to the proposed revised rule says that the problem with the current Rule 7.1 is that it "seems to categorically prohibit some communications that are not actually or necessarily misleading."

According to the Commission, the existing rule "ordinarily precludes" advertisements about results obtained on behalf of a client, such as particular damage awards obtained, the lawyers' track record of favorable verdicts, and client endorsements.

The Comment to the proposed revised rule still warns that lawyers reporting their accomplishments on behalf of clients risk misleading others. But the proposal would apply this test to such statements (and others):

Is there a substantial likelihood that a reasonable person will be led astray by the lawyer's truthful statements?

Puffing?

Inquiring minds may now ask: Does the new formulation permit "puffing" in lawyer advertising?

In July 1998, Wil Hornsby wrote in A Re-Examination of the ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies — A White Paper Presented for the Purpose of Discussion by the American Bar Association Commission on Advertising that:

"Puffery, which is often a whimsical feature of that product advertising which relies on exaggeration, is strictly eliminated from the parameters of legal services marketing."

The proposed revision, however, appears to accept "puffing" as ethical because normal people are smart enough to put it in its place and are not misled.

The FTC has defined "puffing" this way:

"[T]here is a category of advertising themes, in the nature of puffing or other hyperbole, which do not amount to the type of affirmative product claims for which either the Commission or the consumer would expect documentation." Pfizer, Inc, 81 F.T.C. 23, 64 (1972).

The term "Puffing" refers generally to an expression of opinion not made as a representation of fact. A seller has some latitude in puffing his goods, but he is not authorized to misrepresent them or to assign to them benefits they do not possess [citation omitted]. Statements made for the purpose of deceiving prospective purchasers cannot properly be characterized as mere puffing. Wilmington Chemical, 69 F.T.C. 828, 865 (1966).

FTC Policy Statement on Deception, October 14, 1983, n. 42.

Note: Merely because "puffing" may soon be officially tolerated does not mean that it is effective or that it may not have other collateral consequences.

Beyond Puffing: What Constitutes Deception?

The line between "puffing" and deception will still have to be drawn with reference to individual circumstances.

The Comment suggests that even truthful statements may be misleading if others might unjustifiably be led to believe that by hiring this lawyer they too could achieve the same results without regard to the specific factual and legal circumstances of their own cases.

Another problem area: the danger of making unsubstantiated comparisons of lawyer services or fees with such specificity that a reasonable person might be misled into concluding that the comparison actually can be substantiated.

Use a Disclaimer

The Comment provides a practical tip — use an appropriate disclaimer or qualifying language to prevent a statement from creating unjustified expectations or being misleading.

Advertising

The proposed revision to Rule 7.2 — Advertising — would acknowledge Internet media as being as acceptable as traditional media by removing references currently expressly approving only traditional media.

For what it may be worth, Internet "billboards" would be as acceptable as roadside billboards. And E-mail would be as acceptable as "snail mail" for advertising.

More Unsolicited E-Mail?

(Does this re-open the issue of lawyer advertising to lists, which some would characterize as E-mail marketing; others, as "spam"? Neither the words of the proposed rule revision or the Reporter's Explanation directly address that subject.)

Electronic Record of Advertising

The proposed revisions to Rule 7.2 do not change the requirement to keep a record of advertising for two years after its last dissemination. However, electronic records would be recognized as an acceptable form of such record keeping.

Identifying a Responsible Party

The proposed revised rule also changes how a lawyer or law firm takes responsibility for a web site. It would make it acceptable to identify a law firm — instead of at least one particular lawyer (as now required) — as the party responsible for the published advertising content.

Publishing Office Addresses: Effect on Home Offices

In a related change — one some lawyers may view with varying degrees of concern — in all cases, this named responsible law firm or lawyer must publish its (or his or her) office address on the advertising or web site.

Lawyers who currently practice from home offices may not now list their address on their web sites because they do not think it is relevant, they do not wish to be seen more disadvantageously than lawyers with separate, traditional offices, or they simply may not wish to publish their home addresses on the Web.

Under the proposed revision, none of these concerns would matter. Home-based lawyers would no longer have freedom to make such an omission in any form of advertising through public media or in written, recorded or electronic communications.

The Commission explained why it wants lawyer addresses to be published:

"Because Rule 7.5 permits the use of trade names and because lawyers frequently advertise in locations where they do not maintain an office, the Commission has added a requirement that each advertisement include an office address for the law firm or lawyer named in the advertisement. This information will help disciplinary authorities track down those who are responsible for an advertisement, but, more importantly, it will provide prospective clients with important information about where the lawyer or law firm is located - an important fact in this era of multijurisdictional advertising."
See Model Rule 7.2 - Reporter's Explanation of Changes.

Direct Contact with Prospective Clients

The significant change in the proposed revision to Rule 7.3 — Direct Contact with Prospective Clients — is to ban solicitation of professional employment from a prospective client by means of "real time electronic contact" (unless a family, personal, or prior professional relationship exists).

According to the Comment, "real-time electronic contact", along with in-person and live telephone solicitation, has "potential for abuse" when the prospective client is known to need legal services.

"These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter."
The Comment states that "real-time electronic persuasion" "may overwhelm the client's judgment."

Is the Remedy Overkill?

While there are reasons for concern about "real-time electronic persuasion" (more commonly known as Internet chat or Instant Messaging"), the idea that through hastily typed words, a lawyer can "overwhelm" a prospective client may be overstating things.

Most lawyers are normal people who harbor no thoughts of "overwhelming" prospective clients.

Such a tactic is not, after all, a very good way to start a relationship. (None of the legal marketing literature recommends this as an effective way to build a law practice.)

Here, inquiring minds might ask: Is the Commission reacting to a genuine problem or to a fear of the unknown if lawyers and ordinary people co-mingle electronically?

Commission Has Not Provided Sufficient Evidence to Justify Total Ban?

Regrettably, the Commission foregoes all opportunities it might have taken to cite evidence that lawyers actually possess the power to coercively persuade through the keyboard.

Instead, the Reporter's "Explanation" announces — without explanation — that "the Commission has concluded that the interactivity and immediacy of response in real-time electronic communication presents the same dangers as those involved in live telephone contact."

If clients are complaining of lawyers' chatting tactics and reporting that they are being subjected to "overreaching importunings", one must take it seriously. But is that happening — or happening in magnitude or degree of harm as to warrant a blanket ban?

The 1998 ABA Advertising Whitepaper does nothing more to substantiate the view that "real-time electronic contact" is inherently coercive or intimidating or that it is more like in-person solicitation than E-mail.

CPAs Solicit — Time to Re-Examine Why the Professions Are Treated Differently?

One may also step back to reconsider the underpinnings or proper boundaries of the anti-solicitation rules generally. In this time of consideration of multi-disciplinary practice, is it not relevant that the U.S. Supreme Court, in Edenfield v. Fane, 507 U.S. 761 (1993) permitted accountants to engage in direct, personal solicitation for clients?

In the Edenfield opinion, the Court stressed the benefits that might result from solicitation. But it also justified differences between solicitation by accountants and attorneys. Unfortunately, at least from the perspective of the year 2000, it did so by invoking outmoded stereotypes and overgeneralizations about the two professions and how they differ:

"Unlike a lawyer, a CPA is not 'a professional trained in the art of persuasion.' A CPA's training emphasizes independence and objectivity, not advocacy."

At a time when many lawyers are concerned about professional encroachment by accounting/multi-disciplinary firms, and their possible ability to out-market law firms, how much longer can these "constitutional" differences in regulation of the two professions legitimately persist?

For more, see G. Rosden and P. Rosden, 3 The Law of Advertising (Matthew Bender) at 46-37 (solicitation) and 46-42 (treatment of other professions) and P. DeVore & R. Sack, Advertising and Commercial Speech (Practicing Law Institute) at 12-120 (accountants).

Concerning Chat

There are concerns about lawyer chat. But they are different ones than those on which the Ethics 2000 Commission has focused. See Lanctot, Catherine J., Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L. J. 147, http://www.law.duke.edu/journals/dlj/articles/dlj49p147.htm.

Perhaps the Commission is doing lawyers a favor by proposing to ban a practice fraught with some liability risk, but lawyer ethics and lawyer responsibility are not one and the same thing.

Nonetheless, one must recognize that the Ethics 2000 Commission has raised a red, or least a bright fluorescent yellow, flag over the heads of lawyers who like to chat.

Advertising Material

Another proposed revision to Rule 7.3 would require a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter to place the words "Advertising Material" at both the beginning and ending of an E-mail solicitation.

Communication of Fields of Practice

There are no changes proposed to the existing Rule 7.4 — Communication of Fields of Practice.

Firm Names and Letterheads

The proposed revision to Rule 7.5 — Firm Names and Letterheads — would allow law firms to be designated by a "distinctive website address or comparable professional designation." The "dot.com" law firm can now be known by its "dot.com" name.

Of course, such names may not be misleading as defined in rule 7.1. See discussion above concerning the changes to Rule 7.1.

Domain Names That "Puff"?

Will the combination of the two proposed revised rules sanction domain names that "puff"?

Probably. But neither proposed revised Rule 7.5, the Comment, nor the Reporter's Explanation discuss the point at all.

"Creative" Ways to Increase Web Traffic

In one area, the Ethics 2000 Commission expressly avoided writing new ethics standards.

The Reporter's Explanation for the proposed revision to Rule 7.5 acknowledges that there are "creative techniques" whereby one may "increase the likelihood that a browser will be directed to a law firm's web site" and that "there is some potential for improper use."

Nonetheless, the Commission has deemed it advisable to stay out of this area.

(Had the Commission ventured into this subject matter, it would have been tantamount to setting technical standards for lawyer web pages.)

Wisely, the Commission said that general principles found in Rule 7.1 (prohibiting false and misleading communications) and 8.4 (apparently referring to the prohibition on dishonesty, fraud, deceit or misrepresentation) provide sufficiently clear standards for lawyer behavior.

Conclusion

The proposed changes discussed above are not final. They have been issued in the form of a Public Discussion Draft. Such discussion and comment may cause additional changes or clarifications, and some may well be advisable. Broad participation in the comment process, including constructive criticism of the proposed rule changes, will make rules as finally adopted more useful to lawyers and clients alike in the coming years.

By and large, the proposed rule revisions enhance the relevance of the Model Rules by acknowledging the existence of, and lawyers' use of, the Internet and by offering guidance about proper behavior in new contexts.

*****

This analysis was current when prepared on March 21, 2000 by LaVern A. Pritchard of Pritchard Law Webs (and the Law Office of LaVern A Pritchard).

It is based on proposals advanced by the Ethics 2000 Commission dated February 21, 2000 as they appear on the web site of the American Bar Association.

This analysis was distributed to lawyers and others attending the continuing legal education seminar: Profit from the Internet: A Lawyer's Guide to Maximizing the Web sponsored by National Practice Institute and the General Solo and Small Firm Committee of the Hennepin County Bar Association.

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