BY SVIATLANA LIASHCHYNA
as seen in Issue-35 of a360inc's Compliance Newsletter
In August, the American Bar Association (ABA) amended the Model Rules of Professional Conduct related to legal advertising. The purpose of the modifications is to modernize and simplify the advertising rules for lawyers to reflect changes in the existing legal landscape. In recent years, individual states have modified the advertising rules and this has caused a significant discrepancy in approach to this complex area. In this article, we will summarize the adopted modifications and share some compliance considerations related to legal marketing.
Prior to the 1977 Supreme Court decision in Bates v. State Bar of Arizona, lawyers were not allowed to advertise their services. In Bates, the court ruled that a lawyer advertising is considered commercial speech, which is entitled to the protections of the First Amendment. The decision allowed lawyers to advertise in a manner that is not misleading to members of the general public. The decision also rejected the prohibitions of advertising by lawyers as “an antiquated rule of etiquette.”
Today the ABA’s Model Rules of Professional Conduct include rules 7.1 through 7.3, which cover communications regarding legal services. These rules are based on a prohibition of misleading statements in legal services advertising communications. The adopted modifications provide further guidance on what lawyers might be restricted from saying and doing in an advertisement for their services:
It was clarified that the prohibition on paying for a recommendation does not apply to lawyers and employees who recommend a lawyer from the same firm.
Nominal gifts, such as taking someone out for a meal to thank them, are allowed as long as neither party intended nor reasonably expected the gift to be a form of compensation for recommending a lawyer’s services.
To ensure compliance with the applicable professional rules and standards, firms should:
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