That title is probably a thing somewhere else on the interwebs already, but I’m just lazy enough to not look it up at the moment.
So, it’s been a minute since I have written anything about the progress (or lack thereof) of jurisdictions adopting ABA Model Rule 8.4(g) and since I have written anything (other than indirectly) about whether any progress has been made on adopting the revised, modernized approach to lawyer advertising rules seen in the APRL-inspired, ABA Model Rules revision from last year.
In overlooking those stories in favor of writing about more radical proposed changes to the ethics landscape (some of which have thrown modernized advertising proposals into the stew), I’ve been highlighting a lot of activity in the western United States. But spending a bit of time on these other two topics, gives me a chance to write about happenings in the New England region of the United States.
Specifically, earlier this year (more than five months ago in fact), Maine became the second U.S. jurisdiction to adopt a version of ABA Model Rule 8.4(g) to seek to address harassment and discrimination related to the practice of law. A neighboring state, Vermont, is the only other state to have done so. Unlike Vermont, however, Maine did not adopt an exact version of the ABA Model Rule. Instead, Maine tweaked it in a few significant ways: (1) the Maine version does not include “marital” or “socioeconomic” status among the grounds for which discrimination is off-limits; (2) the Maine version does not include bar activities or professional social functions within what counts as “related to the practice of law,” and (3) it provides more detailed examples of what amounts to “harassment” and what amounts to “discrimination” under the rule. You may recall that an effort to adopt a modified version of Rule 8.4(g) here in my state of Tennessee failed miserably in 2018.
A bit more recently (only just three months ago), Connecticut became the first state to adopt the ABA revisions to the Model Rules related to lawyer advertising. You may recall that Virginia actually overhauled its rules even before the ABA took action by adopting the original APRL proposal back in 2017. In so doing, Connecticut (for the most part) has stripped its advertising regulations down to just three rules — patterned on ABA Model Rules 7.1, 7.2, and 7.3. Connecticut does still keep a couple of its additional bells and whistles (though it can be hard at first blush to know for certain because they used [brackets] to indicate deletions rather than
strike-through text). One deviation that it kept was its 40-day off limits provision for people involved in accidents. Another deviation is that they have a three-year record retention requirement in their version of these rules. A few other deviations made it through as well.
If I could take issue with one choice Connecticut has made (well, technically two — seriously, don’t do the brackets thing ever again), it would be the level of unnecessary detail in the following provision about record retention:
An electronic communication regarding the lawyer’s services shall be copied once every three months on a compact disc or similar technology and kept for three years after its last dissemination.
The problem with this is … well there are several. In 2019, a whole lot of computers don’t even have CD-ROM drives any longer, but also the level of specificity and detail is both micromanagement of an unneeded degree and entirely unlikely to actually accomplish anything. As to micromanagement, just require that an electronic record be retained for the three year period – if they want to store it in a server or in the cloud or wherever, it won’t matter as long as they retain it so that if you ever need to examine it you get it from them.
And also, every three months? Both micromanagement and ineffectual, a lawyer who wants to game that system just changes an electronic communication to be shady in the middle of the three month window and changes it back in time to make the every three-month copy.
Except, of course not really, because the stories about Connecticut’s adoption of the ABA Model Rules on advertising, including this story, all buried the lede — Connecticut still requires lawyers who advertise in public media to file a copy of the advertisement in the form it is distributed with the Statewide Grievance Committee. Sigh. While this is not a “prior restraint,” it is a “prior pain-in-the-ass” (TM, TM, TM, TM) that serves little to no purpose other than imposing additional expenses and red tape on lawyer advertising.
To have both such a filing requirement and a three-year record retention requirement is among the worst sort of “belt and suspenders” arrangements.
In the end, I guess that’s part of why it took so long to actually write this post. Between reading the headlines and being a bit excited and actually studying what Connecticut did, I ended up feeling like I just got nutmegged.