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Could New Advertising Rules be on the Horizon?

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Have you ever been confounded by the complexity of the advertising rules, especially with respect to direct mail/email communications?  When must you use a disclaimer and what must it say?  How big must the disclaimer be and where must it be placed?  What color and font can you use for the disclaimer? The ABA Standing Committee on Ethics and Professional Responsibility is proposing significant changes to the advertising rules, and plans to present its recommendations to the ABA House of Delegates in August**.  Your NC State Bar has been watching this process for a while now, but is certainly not waiting to see what the ABA will do.  A special committee to study the new proposed ABA Model Rules on advertising has been convened by the State Bar, and I am excited to be serving on the committee.

Why is the ABA considering these changes to the Model Rules?  First, the ABA wants to encourage national uniformity in the advertising rules and a simplification of the rules.  Each state’s advertising rules look very different, and many are very complex.  Second, the ABA wants to accommodate changes in the legal profession from technology, competition, and cross-border practice.  Certainly the legal profession has changed since the advertising rules were adopted, and many of the provisions are outdated given technological advances and social media.  Third, the ABA wanted to relieve regulators of unnecessary burdens.  Nearly all complaints in advertising grievances are from competitors, not clients.  If there truly is little risk that prospective clients will be misled, then regulators should not be spending time disciplining attorneys for violating what amount to technical violations of very specific rules.

Here is one example of a proposed modification by the ABA Standing Committee.  Our NC Rule 7.3(c) has very specific requirements for targeted direct mail solicitations, including what the advertising disclaimer must say, the size of the font, the placement of the disclaimer, and the conspicuousness of the disclaimer relative to other printing on the envelope and in the letter.  The draft ABA opinion would completely eliminate Rule 7.3(c) as it exists today and the comments relative to direct mail solicitations.  The proposed rule would define “solicitation” as 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.”  The proposed ABA Rule 7.3 goes on to prohibit solicitation by “live person-to-person contact” subject to certain exceptions, but specifically excludes written/electronic communications from the prohibition, unless the recipient has made known a desire not to be solicited or if the solicitation involves coercion, duress or harassment.

If NC adopted this kind of rule change, attorneys could spend more time practicing law, and less timing measuring the size of their disclaimers. State Bar staff could worry about bigger problems than whether an attorney’s disclaimer language meets the conspicuousness test.  Heck, my clients wouldn’t need me to review their ads as much, but I’m definitely OK with that!

**UPDATE: Changes were recommended to the House of Delegates in August, and with some minor modifications were approved by the ABA.  The NC Special Committee to Study the new rules continues to meet to determine which of those Model Rules North Carolina wants to adopt.