My last post was filled with criticisms related to the roll out of a new ABA Ethics Opinion. Today I’m offering a different tone and message for the ABA Standing Committee on Ethics and Professional Responsibility – a positive message offering kudos for the working draft that has now been circulated to revise the ABA Model Rules on advertising issues.
I’ve written a number of times in this space in the past about the push by APRL on this front and, although the working draft that has now been put out by ABA SCEPR does not entirely match APRL’s proposal, it adopts a significant amount of what that proposal sought to accomplish.
The working draft deletes Model Rules 7.5 and consolidates much of the regulation involved in that rules into Comments added to Model Rule 7.1.
It trims a little bit of fat from the Comment to Model Rule 7.2 and explicitly acknowledges the ability of lawyers to offer things akin to a “token of appreciation” to people who provide them with referrals and the like without violating the ethics rules.
It also removes a number of restrictions on solicitation by narrowing what is prohibited to interactions that can be described with the term “live person to person contact,” adding a new class of purchasers of legal services who can even be asked for their business live and in person, and leaving the overarching prohibitions against coercion, duress, or harassment as the line that cannot be crossed in any effort to develop business.
What constitutes “live person to person contact,” would be defined in the first two sentences of Comment  to the rule:
“Live person to person contact” means in person, face to face, telephone and real-time person to person communications such as Skype or Facetime, and other visual/auditory communications where the prospective client may feel obligated to speak with the lawyer. Such person to person contact does not include chat rooms, text messages, or other written communications that recipients may easily disregard.
The new category of purchasers of legal services who would be fair game for even live person to person contact would be people “known by the lawyer to be an experienced user of the type of legal services involved for business matters.”
Model Rule 7.4 would be honed down to two provisions — one that permits lawyers to truthfully tell people what fields of law they practice in and one that prohibits lawyers from claiming to be certified as a specialist in any area of law unless the lawyer actually is so certified by an appropriate entity and the name of the entity is clear in the communication.
The APRL proposal would be an even more streamlined regulatory approach than what is being offered in the ABA SCEPR working draft in large part because the APRL proposal also would have deleted Model Rule 7.2 and 7.4 altogether and retained bits from the Comment to each of those rules that were worth retaining by relocating them to Rule 7.1.
Nevertheless, decrying this progress from the ABA SCEPR would be an exercise in letting the perfect become the enemy of the good. And, at least one time in 2017, I am going to refrain from doing that.