ABA Standing Committee on Ethics and Professional Conduct members (Jan Jacobowitz, Elizabeth Tarbert, Lynda Shely, Barbara Gillers, Chair, Hon. Daniel Crothers) listen to audience comments.
Navigating Industry Change Via a Seat at the Table
On February 2, LMA took part in the ABA Standing Committee on Ethics and Professional Responsibility Forum on Proposed Amendments to ABA Model Rules on Lawyer Advertising. This forum introduced an opportunity for the committee to hear from those who wished to provide comments or suggested revisions to the proposed rules, which focus on addressing false and misleading communications and solicitations.
According to the ABA, these changes — which stemmed from a call for a modernization of the rules from the Association of Professional Lawyers (APRL) — are meant to improve the way in which lawyers communicate to legal service consumers.
As Co-chair for the LMA Working Group on Ethics and Marketing, I was pleased to represent LMA at this forum. The working group, formed to represent legal marketers in this and other conversations about ethics and rules related to our work, is part of the new LMA Advocacy Advisory Council.
At the forum, I joined such participants as George Clark, President of APRL, Will Hornsby, staff counsel on behalf of the ABA Standing Committee on Legal Services Delivery, as well as several practitioners including, Bruce Johnson, a constitutional law partner from Davis, Wright and Tremaine (DWT), and Mark Britton, CEO of Avvo.
All present supported the work of the committee and encouraged it to go even further with its revisions, with several in the room advocating for the elimination of Rule 7.2 as redundant. In particular, Johnson noted that there is overregulation of "specialization" and that the definition of solicitation would not pass the Central Hudson (S.Ct. case) test. Speaking on behalf of LMA, I shared our support for the work of the committee and recommend the ABA adopt the proposed rule revisions and consider further modifications to streamline and clarify the rules.
Several states, including Washington, Oregon and Virginia, have already adopted the APRL recommendations. Overall, the consensus in the room was that the rules need to be streamlined and consistent, with an emphasis on a national structure that states can sign on to and not feel the need to "enhance" the model rules.
It is critical that legal marketers continue to have a voice in this ongoing discussion, and LMA is determined to be that voice. While the Bar and the courts establish the rules, legal marketing and business development professionals often have the responsibility of implementing these rules when working with their attorneys across offices to disseminate subject matter alerts, to develop client seminars, and to post on social media, just to name a few examples. The document detailing just the differences between state advertising and solicitation rules and the Model Rules number 106 pages — that is untenable in today’s era of global communications vehicles like the internet and social media.
The ABA Committee will be accepting comments on its proposed revisions through March 1 and then will meet in April and May to prepare final proposed amendments to send to the ABA House of Delegates in August. Our working group will work with LMA members and leaders to develop and submit comments prior to the March deadline. We are also committed to continuing to support the committee in its efforts to develop streamlined rules that are consistent and effective and to assist with their approval and subsequent acceptance at the state level. To do so will take the assistance of all LMA members. Please watch for more information coming soon on how you can get involved in this important initiative.
Ready to be part of the story now? Tell us the lengths to which you have gone to comply with the current advertising rules by sending your examples and stories to: firstname.lastname@example.org. We promise not to attribute the story to you or your firm without your permission.
Kim Perret is the chief marketing officer at Jones Walker LLP. She currently serves as co-chair of the LMA Advocacy Working Group on Ethics and Advertising and as a LMA Southwest Region Board Director.