As with any business, attorneys are always looking at new ways to generate new leads and, therefore, potential clients. With the advanced targeting technology available today, you could even create bespoke advertising campaigns that speak to a potential client’s specific pain points.
However, what you can and can’t say to attract new business has recently grown more regulated. The American Bar Association (ABA) has changed the Model Rules of Professional Conduct that govern attorney advertising to reflect the growing modernization of advertising techniques. While some states have already adopted them fully, others are considering which elements to implement.
So what’s driven the changes?
ABA Reconsiders Policies
Upon investigation, the ABA found that the majority of complaints regarding advertising practices were made by competing lawyers rather than from clients or potential clients. This revelation suggested that the advertising rules were being used as defensive ploys by law firms competing against each other.
However, when reassessing current guidelines, the ABA was quick to note the detrimental effect that tight regulation of advertising could have. Not only could the general public suffer because of being unable to find legal representation, new lawyers who had recently passed the bar would find it extremely difficult to attract new clients.
So what’s changed?
Rule Change on Misleading Statements
One of the most critical sections of the Model Rules is the one that focuses on misleading statements made in advertising. The ABA decided that rule 7.5, which governed misleading firm names or letterheads, should be streamlined and included as a comment into rule 7.1.
Now the rule states that “Firm names, letterheads, and professional communications concerning a lawyer’s services” must not be misleading in any way. Examples given within the rules on what constitutes “misleading” are characterized by implied connection with a government agency, with a lawyer not associated with the firm (or a predecessor firm), or with a public or charitable legal services organization.
Redefining the Word “Advertise”
While lawyers can agree on what constitutes advertising with the traditional formats of print, television, and radio, there’s less agreement with digital strategies. For example, does a social media post about a recent case win count as advertising? What about a thought-leadership article describing one particular lawyer’s experience concerning a specific legal topic?
The ABA has sought the clarify the situation by changing the word “advertise” to communicate. The rule now reads as “a lawyer may communicate information regarding the lawyer’s services through any media.” Therefore, any external communication made by a law firm is now covered by the ABA’s Model Rules that govern advertising.
Permitted Solicitation Methods Updated
Rules governing solicitation have long differed from jurisdiction to jurisdiction. While some have enforced strict guidelines, others have preferred to operate a more relaxed “know it when you see it” approach.
To clear up any confusion over what constitutes a solicitation, the ABA have updated their rule to: “‘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.”
Interestingly, the new rule also seems to deem in-person solicitation of sophisticated clients acceptable. Even though lawyers are strictly forbidden from all forms of coercion or harassment, these updates recognize the ability of sophisticated clients to self-determine whether contact with a soliciting lawyer should continue or not.
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