Hello everyone and welcome to this Ethics Alert blog which will discuss the recent report of the Advertising Committee of Association of Professional Responsibility Lawyers (APRL) recommending revisions to the lawyer solicitation rules. The April 26, 2016 report of the APRL Regulation of Lawyer Advertising Committee is here: https://www.aprl.net/publications/downloads/APRL_2016_Lawyer-Advertising-Supplemental-Report_04-26-16_w-Attach.pdf
The APRL Advertising Committee’s previous report dated June 22, 2015, discussed concerns about overly restrictive and inconsistent state regulation of lawyer advertising, particularly related to electronic media advertising. That APRL report recommended substantial revisions to the lawyer advertising rules “to achieve greater rationality and uniformity in regulatory enforcement of lawyer advertising and marketing and proposed a new Model Rule 7.1 to replace ABA Model Rules 7.1, 7.2, 7.4 and 7.5 and by the use of non-disciplinary means to address most complaints about lawyer advertising.” The June 22, 2015 APRL report is here: https://www.aprl.net/publications/downloads/APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf
The June 22, 2015 report further states: “It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising. The Committee recommends that the ABA Model Rules governing communications about legal services be consolidated into a single disciplinary rule that simply prohibits false or misleading statements. Adopting this approach to advertising regulation, combined with reasonable uniform enforcement policies and protocols by state disciplinary authorities, is in the Committee’s view the best way to ensure honest communication by lawyers while at the same time promoting the widest possible access by the public to legal services.”
Current ABA Model Rule 7.3 (solicitation) states:
(a) A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…
According to the April 26, 2016 report, “(t)he Committee has now considered the solicitation rules and has concluded that the legitimate regulatory objectives of preventing overreaching and coercion by lawyers who use in-person solicitation and targeted communications with the primary motivation of pecuniary gain can best be achieved by combining provisions of Model Rules 7.2 and 7.3 in a single rule. The Committee’s proposed revisions of Model Rules 7.2 and 7.3 in the form of new Rule 7.2 is set forth in Attachment A. The Committee’s revised rule both defines solicitation and distinguishes solicitations that are prohibited from those that are permitted with appropriate protections.”
The proposed rule is below:
Rule 7.2 Solicitation of Clients Solicitation
(b) Except as provided in paragraphs (c) and (e), a lawyer shall not solicit in person by face to-face contact or live telephone, or permit employees or agents of the lawyer to solicit in person or by live telephone on the lawyer’s behalf, professional employment from a prospective client when a significant motive for doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; (2) is a sophisticated user of legal services; (3) is pursuant to a court-ordered class action notification; or (4) has a family, close personal, or prior professional relationship with the lawyer.
The proposed rule revision would still prohibit “in person” solicitation by a lawyer or the lawyer’s agent “face-to-face” or via “live telephone”, “when a significant motive for doing so is the lawyer’s pecuniary gain.” The proposed rule would permit solicitation if the person:
(1) is a lawyer;
(2) is a sophisticated user of legal services;
(3) is pursuant to a court-ordered class action notification; or
(4) has a family, close personal, or prior professional relationship with the lawyer.
The proposed rule would remove the provision in the current model rule which applies the solicitation rule to chat-room communications and would expressly allow a lawyer to solicit a “sophisticated” user of legal services, which it defines as “an individual who has had significant dealings with the legal profession or who regularly retains legal services for business purposes.” The committee stated that it believes that such a sophisticated user does not need the protection of the lawyer-conduct anti-solicitation standards because of his or her sophistication. APRL is attempting to present these proposals to the ABA House of Delegates in 2017.
Florida’s current direct contact/solicitation rule is below:
RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not:
(1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules.
As I reported in my August 20, 2015 Ethics Alert, The Florida Bar’s Board of Governors reversed a Bar Advertising Committee opinion that text messages were direct contact/solicitations and found that a law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and e-mail communications. The Florida Bar rules also require that the first line of the text state that the communication is “advertising” and, if the text is a communication about a specific matter, it must have language stating that, if the recipient already has an attorney, he or she should disregard the text. The text must also disclose how the law firm got the recipient’s name. The August 20, 2015 Ethics Alert is here: https://jcorsmeier.wordpress.com/2015/08/20/florida-bar-board-of-governors-finds-that-unrequested-texts-to-prospective-clients-on-specific-matters-are-not-prohibited-solicitations/
Bottom line: The APRL’s proposed solicitation rule is a long way from implementation. Even if the provision is approved by the ABA, the Model Rule is non-binding and each individual state Bar and Supreme Court would have to approve it for it to be implemented and become binding in those states.
Be careful out there!
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670