Remember how I wrote that virtual practitioners may need to collaborate with “branded network concepts” when updating their marketing strategies? I also argue that this is necessary in the conclusion of my new book on unbundling because it’s a major component in increasing overall access to justice. Apparently I’m not the only one who sees the potential benefits to the public and the profession from the availability of newer online lawyer advertising methods.
The ABA Standing Committee on the Delivery of Legal Services has written a letter to the Commission on Ethics 20/20 providing its recommendations regarding lawyer advertising rules. In an interesting move, the Committee has recommended the deletion of Model Rule 7.2(b).
For those of us in virtual practices who depend on online advertising methods perhaps moreso than traditional law firms, this would be a potentially revolutionary change to the rules. Model Rule 7.2(b) is the rule that prohibits a lawyer from giving anything of value for recommendation for his or her services with four exceptions. It is these exceptions and the speed at which online advertising methods have developed that has caused confusion and controversy over the past few years.
The Committee’s letter provides a background on how changes in online advertising methods have impacted the options available to the public seeking legal services. Because one of the primary goals of the Committee is to increase access to justice for individuals of moderate income levels, they are quick to point out that these new online methods actually allow for individuals of all income levels to find both the lawyers that they could work with as well as other resources that empower them to make educated decisions about the legal services they might need.
Allowing for greater collaboration with branded network concepts and their advertising methods that are direct to the consumer would also more greatly benefit solo and small firm practitioners (the largest growing firm size in our profession). As a virtual solo practitioner, I know this very well. I cannot compete with companies providing online legal services in terms of ranking at the top of a search engine because I don’t have millions of dollars in my advertising budget to bump me up to the top. That also means that the public has less chance of finding me and is limited in their choice to those firms or legal services companies that have more buying power.
In recommending the deletion of Model Rule 7.2(b), the Committee points to the underlying concerns that this rule was originally intended to address, such as “ambulance chasing”, lawyer independence about whether to take a case or not, risk that there may be misrepresentation of the lawyer’s services in the channeling of work to the lawyer, etc. They then note how each of these concerns may be already addressed in other existing model rules governing the lawyer’s conduct.
In further explanation for the recommendation, the Committee looked at the exceptions to 7.2(b) and noted that the terms there are “not clearly defined and are inconsistently applied from one state to another.” Of particular interest to virtual law practitioners is the Committee’s discussion of online models of advertising. The Zelotes v. Rousseau case is provided as an example of where an online advertising model was challenged due to the vagueness of 7.2(b). That case raised the questions of “what is an online referral versus an online recommendation” as well as the ability of a lawyer to be assigned exclusive territories when advertising his or her services. (Alabama State Bar Assn. v. RW Lynch Co., Inc., an older case involving tv ads where the court debated whether it was a group advertising model or referral service and also touched on geographic exclusivity.)
Many State’s interpretations of 7.2(b) differ. Of course, online advertising methods and the companies that provide them do not have the same boundaries. This creates confusion for lawyers – especially multijurisdictional virtual law firms – and providers as to how they should comply and how the rules will be interpreted with new and emerging online methods. (I just finished writing a law review article on regulatory barriers to multijurisdicational virtual law firms and the advertising rules are one among several of the Model Rules.)
The Committee also agrees with the Commission’s proposal to add a comment to Rule 7.3 regarding solicitation that would clarify that solicitation does not include “an Internet banner advertisement, a website or television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.” But they recommend that the Commission change the proposed comment to clarify the difference between a solicitation and advertisement including, among other recommended changes, that the communication would not be a solicitation if it were “directed to the general public through the media.”
Frankly, I was surprised and thrilled that the Standing Committee made such a bold recommendation to the Commission. I wish I were able to attend the hearings at the ABA mid-year meeting next week in New Orleans to attend the Commission’s hearings. I am anxious to hear from the leaders of the legal services companies that provide different forms of online advertising for lawyers, including Rocket Lawyer and MyLawyer, which are the most recent developments in the branded network concept. I believe Legal Zoom may also be adding or have already added a component that allows their customers to be channeled to lawyers who have paid to be a part of their network.
I am still processing the implications that the removal of 7.2(b) might have on the development of additional online advertising models. After all, even if the recommendations were accepted by the Commission, it would then have to be adopted and then each individual State would have the option of whether or not to follow suit. I find it highly unlikely that all of them would do so, especially the more protectionist states (you know who you are) and those more slow to adapt to how technology has impacted law practice. But it’s a wonderful first step forward that’s been long overdue. The Committee should be commended to taking such bold action!