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Attorney Advertising and Solicitation - a New Look

Times change. Advances in technology (as well as what behavior is considered to be professional and dignified) are prompting revisions to the ABA Model Rules concerning advertising and solicitation. When I first began practicing law (now approaching 50 years ago), attorneys could not and did not advertise. Since then, a series of Supreme Court decisions mandated granting attorneys limited rights to advertise. I recall contentious meetings of the CBA Professional Responsibility Committee at which current Illinois Rules of Professional Responsibility 7.1 – 7.5 (and their predecessors) were debated. The very idea of lawyers engaging in an “active quest for clients” was felt to be unprofessional and undignified. Nevertheless, the “active quest” was permitted.

The June 22, 2015 Report of the Regulation of Lawyer Advertising Committee of the Association of Professional Responsibility Lawyers (APRL) stated: “The basic problem with the current state patchwork of lawyer advertising regulations lies with the increasingly complex array of inconsistent and divergent state rules that fail to deal with evolving technology and innovations in the delivery and marketing of legal services. The state hodge-podge of detailed regulations also present First Amendment and antitrust concerns in restricting the communication of accurate and useful information to consumers of legal services.” In response to this concern, the APRL has recommended amendments to ABA Model Rules 7.1 through 7.5.
Importantly, Rule 7.1 – “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services” – remains unchanged. However, many of the specific technical provisions of Rules 7.4 (Communication of Fields of Practice and Specialization) – 7.5 (Firm Names and Letterheads) have been reduced to comments to Rule 7.1. Most of the recommended changes bring the Model Rules into compliance with various court decisions concerning advertising. The proposed new rules also recognize the advancements in the use of electronic advertising and the social media. The procedural effect may be to reduce the penalties for violation of technical advertising requirements.

A somewhat more substantive change involves the (renumbered) Rule 7.2 (Solicitation). The APRL considered the issue of solicitation of clients in the context of Internet communication and social media. The prohibition against direct client solicitation is that lawyers, by training, may be able overwhelm the potential client by persuasive argument. The current rule prohibits direct solicitation by “in-person, live telephone or real-time electronic” contact. In its 2016 Supplemental Report, the APRL stated: “when considering other means of solicitation, for example, through chat rooms, social media, text messaging, instant messaging, etc.,” regulation of those contacts is justified only if the solicitation occurs under circumstances that are "inherently conducive to overreaching or other forms of misconduct." The proposed new rule omits “real-time electronic” contact from the prohibited list, though the comments reflect a concern over possible abuse.

Space does not permit discussion of all of the subtleties of the proposed changes. By and large, they would have little effect in Illinois other than to bring our rules more into compliance with current case law and the state of current communication technology. The ABA is considering whether to adopt the proposals. The proposals and background materials are available on the ABA’s website. It behooves us to pay attention to the ongoing discussion.