Earlier this week, the ABA House of Delegates, on a voice vote, passed some much needed improvements to the Seven Series of the Model Rules in order to modernize certain aspects of the regulation of lawyer advertising. I’ve written in the past about how the proposal before the ABA came about as a result of the hard work and persistent effort of APRL. Although the ABA revisions have been brought about as a result of APRL’s proposal, the ABA revisions are not as good as APRL’s original proposal. A number of items fell by the wayside, but they are still a significant improvement and should be championed as such. This is true because of the incremental nature of change when it comes to the rules that govern our profession. If the substance of the changes have not already been described to you, you can read about them here.
Nevertheless, and in no small part because there are always opportunities for page views and clicks for those willing to champion the perfect as the enemy of the good, a number of legal writers have already come out with their hot takes decrying the ABA revisions as insufficient. While that kind of commentary is certainly predictable, it is still disappointing. (And one of those folks, on Twitter, used a now-trite deck chairs on the Titanic analogy, which was both lazy and disappointing given that the deck chairs on the Titanic analogy would have been much better directed at the ABA membership revisions aimed at staunching their bleed of membership and revenues.)
This kind of improvement to the ABA Model Rules is incredibly significant because it is likely to move the goal posts and increase the ability of states to tinker further in a pro-consumer direction. As a staunch backer of the original APRL proposal, I would have loved it if more states followed Virginia’s lead and largely just adopted the APRL proposal even before the ABA took action,
That didn’t happen though. Now that the ABA has acted, two paths for improvement are available. States that merely decide to adopt the ABA improvements will be positively impacting the landscape by streamlining regulation and removing unnecessary barriers to proposing a commercial transaction. Other states, particularly ones that may see themselves as wanting to put down a marker for being more progressive on lawyer advertising issues, can choose to view the ABA action as a good first step and adopt their own, even more substantial modernizing revisions,
(P.S. This is my first post written entirely in an ENO on a porch of a beach house in a beautiful breeze. If you want more of this kind of content, then y’all are going to need to set up some sort of GoFundMe to keep me down here at the beach.)