One of the most frequent excuses we hear for the glacial pace of innovation and problem-solving in the legal profession is that our ethical rules are too confining. Eric Cooperstein and Megan Zavieh propose to remove this last barrier and use this 4-part series to highlight the ethical rules that most desperately need updating. Excuses be damned, these changes would free lawyers to innovate, adapt, and‚ hopefully‚ bridge the gaping access-to-justice divide. This series focuses on updating the Rules of Professional Conduct that threaten the very future of law practice.
There’s plenty of talk about the future of lawyering. Artificial intelligence, machine learning, chatbots, and countless other disruptive technologies promise to change the practice of law as we know it.
But most lawyers head to the office each morning and clock into the same law practice they’ve always known. Threats presented by the future of lawyering seem remote, at best. Most feel powerless to do anything about these changes anyway, so they keep plugging along.
It’s not likely these lawyers will power up their desktops one day and discover that their clients have magically disappeared. More likely, lawyers will slowly notice that their client base is shrinking and their revenues are falling. After further inquiry, they may find their prospective clients are being siphoned off by others‚ probably non-lawyers‚ and slowly realize they are ill-equipped to deal with the decline in business.
The challenge is to embrace innovation while simultaneously preserving the practice of law as a profession. Along the way, we may also tackle the access-to-justice gap. First, we need to reexamine the structures that stand between lawyers and innovation and talk about updating the Rules of Professional Conduct.
A common complaint from lawyers who try to innovate their law practices is that some of our profession’s ethics rules create roadblocks and lag the real world. They’re right.
For example, other industries experimented with part-time and remote work arrangements decades before those practices infiltrated the law. Even then, when lawyers did eventually start experimenting with virtual law offices and remote employees, some ethics regulators went into hyperdrive trying to preserve the old ways. To this day, New York as a “bona fide office” requirement that requires New York-licensed lawyers to maintain a physical office in the state if they want to handle New York legal matters, even if the lawyers are dual-licensed and live in another jurisdiction.
Do We Need to Update the Rules of Professional Conduct?
We, as technology-forward, innovation-friendly ethics lawyers, have a generic sense that the profession is trying to “do” innovation better. For example, lawyers are arguably better today than ever at appropriating technology and culture change from other segments of the economy. But while law firm cultures may be evolving at a speedier clip, innovation is thwarted by some old ethics rules.
Whether this is a good thing or a bad one is subject to some debate. Traditionalists maintain that ethics rules protect the public and mitigate risk through torpor. The futurists counter that protectionism is only a virtue if the thing it shelters from change is worth preserving in the first instance.
There can be no debate, though, that the system traditionalists seek to protect exacerbated‚ or, more likely, caused‚ the access to justice gap and our plodding advances in the delivery of legal services.
Anti-solicitation and advertising regulations are designed to not only protect the public but safeguard the image of lawyers. Nevertheless…access to justice is undermined by the legal profession’s maintenances of ethics rules that keep the public uninformed of the importance and availability of legal services.
—Milan Markovic in Juking Access to Justice to Deregulate the Legal Market
It is time we update the Rules of Professional Conduct.
Among rules most ripe for change are those about marketing legal services to the public.
Attorney Advertising Rules Need Updating
There was a time, before 1977, when the rules prohibited lawyers from advertising their services. Legal advertising has come a long way in the last 40 years, but the rules still suffer from decades-long lag. These rules, written from their authors’ patriarchal perches, were guided by one (perceived) truth: the general public is woefully unsophisticated and paralyzingly unable to survive exposure to advertising. There is no evidence, however, that the public is as gullible as the rules and their drafters assume.
The public is not as gullible as the rules and their drafters assume.
ABA Model Rules 7.1 and 7.2 serve as the foundation for most states’ advertising rules. And, at that base level, it makes some sense. They say, among other things, that lawyers can’t make false or misleading advertisements or pay for recommendations and that every advertisement must include a name and contact details for at least one lawyer or law firm responsible for its content. But many states, viewing advertising as evil, have cobbled on onerous and sometimes bizarre restrictions.
For example, Florida requires lawyers to submit advertisements to the bar for review. You read that correctly: Florida has an office of lawyers devoted to pre-viewing and pre-approving (with a $150 fee per ad!) lawyer advertisements. Direct mail and e-mail, television and radio spots, yellow-pages ads (remember the yellow pages?), and internet advertising are all subject to review. Florida lawyers violate the rule if they have not submitted a proposed ad 20 days in advance. And they can only launch it if the bar approves. The Florida Bar publishes a 35-page book of advertising restrictions and guidelines.
Imagine an attorney becoming aware of a pressing issue for a potential client, like an impending foreclosure or potential fraud. She could not send a letter to the potential client without waiting at least 20 days for the bar to review it.
In New York, lawyers must have detailed descriptions of routine services for which they advertise a flat fee available to the public at the time they publish the fee. New York also has particular requirements for approving and retaining all advertisements and “computer-accessed communications.”
Texas, for its part, has severe and burdensome internet advertising rules, too.
Do these restrictions protect the public? It is hard to tell. At a minimum, no available empirical data supports these various limits. Worse, they very obviously hinder lawyers’ ability and willingness to risk reaching people most in need of their assistance. And its cynicism is apparent: lawyers left unbridled will mislead the public and otherwise violate the rules.
The inherent fallacy is that the public cannot sift through advertisements. And it is nonsense. Turn on any major sporting event and the name of the game and the field on which it is played likely begins with an ad (see, e.g., college football’s Cheribundi Tart Cherry Boca Raton Bowl). Ride any high rise elevator and ads amuse its captives on high definition screens. Social media ads are ubiquitous. Radio disc jockeys read sound bites in a manner that suggests that they had used the advertised services, and public restrooms feature TV screens with a constant deluge of ongoing ads.
Some (most?) states have created rules about advertising. But those states have lagged‚ often dramatically‚ in editing and updating them. What rules apply to lawyers making YouTube videos, posting on Twitter and Facebook, and launching podcasts? Few regulators have addressed them, and lawyers are left petrified and paralyzed in the absence of any useful guidance. Those same lawyers are always aware of the regulators’ prior peccadilloes, so they are unlikely to innovate for fear of scrutiny.
Some lawyers are creating videos for the public’s benefit, and they’re trying to navigate rules not designed to address video. Video-savvy lawyers look to ethics opinions about social media (to the extent those exist) to chart a course for video. But many are left to guess about how they should advance ethics regulators’ patriarchy while also providing marketing materials to their future clients.
The lag between the technology adoption lifecycle and ethics regulators’ prescience about lawyers’ use of that technology in legal advertising is incapacitating and getting worse. Facebook surpassed 300 million active users in 2009. That is, a cohort of people roughly the population of the entire United States has been using Facebook for nearly a decade. For context, here are some things that didn’t exist in 2009:
iPadsGoogle ChromePinterestGoogle MapsThe Marvel Cinematic Universe
Amusingly‚ or sadly, depending on one’s perspective‚ California was viewed as a forward-looking state when it issued its Facebook posting ethics opinion three years later in 2012. Most states have still not issued specific guidance on how lawyers can use social media ethically.
The problem is obvious: years after Facebook has gone entirely mainstream (and, arguably, begun its inevitable decline into obsolescence), millions of lawyers still have no fundamental guidance about how to identify themselves as being responsible for an ad there or, in the case of Twitter, how to post mandatory disclaimers in 280 characters.
Lawyers likely react to this regulatory framework in one of two ways. Most do nothing at all, leaving the world’s most disruptive and powerful marketing channel ever invented to sit idly by as lawyers try to modernize their marketing and advertising and crusade for access-to-justice. The more adventurous ones guess and cross their fingers. To be sure, this is no way to run a self-regulated ethics system.
A revolutionary overhaul of the advertising rules is long overdue. Some may even claim that an overhaul is imminent. After all, the ABA approved a resolution in August 2018 to revise the advertising rules. In our view, the changes do little to advance lawyers’ ability to advertise in useful ways.
Rule 7.2 now allows lawyers to use “all media” (a change from “written, recorded or electronic communication, including public media”). In a nod to virtual law practices, lawyers can now designate other contact information on an ad instead of an office address. And lawyers can now send gifts of appreciation to referral sources.
To be clear, the ABA’s resolution will not result in seismic shifts. Lawyers will still labor under self-imposed restrictions that hinder our reach to potential clients and worry professionals across the land. If anything, the ABA’s revisions show how glacial, marginal, and incremental evolution cripples our profession. That is, while media and business change rapidly around us, we nibble around the edges of our old rules. That there was change at all feels like progress, perhaps, but we’re only falling further behind.
Regulating lawyer advertising at a microscopic level is unreasonable and ineffective. Regulators should stop trying to control the nitty gritty of attorney advertising. They should take a higher-level approach instead and focus on existing rules that require lawyers to be honest and forthright when communicating with the public. Limiting regulation to an unambiguous, evergreen rule like that would unlock lawyers’ creativity and give regulators all the ammunition they need to police our profession from troublesome advertising practices.
Originally published 2018-08-16. Republished 2019-10-17.