In our last blog post, we mentioned how the American Bar Association (ABA) revised its rules on attorney advertising. The revision of the ABA’s Model Rules of Professional Responsibility was more of a complete rewrite, though, as the changes gutted most of the sections in Rule 7.
Here’s what changed, and why it matters for your law firm’s online marketing efforts, particularly legal blogging. The changes particularly impact Old Model Rule 7.4 and whether you can call you or your firm a specialist in a field of law, which we’ll deal with in next week’s blog post.
Rule 7.1: Communications Concerning a Lawyer’s Services
The text of Model Rule 7.1 is left unscathed. The Comments to New Rule 7.1, however, reveal some subtle differences that betray the underlying policy behind the revision.
There is a new sentence at the end of New Comment 2 to Rule 7.1, which explicitly states that “[a] truthful statement is… misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe [it] requires that person to take further action when, in fact, no action is required.” While this clearly aims to reign in aggressive marketing tactics and hard sells, the new addition to Comment 2 raises an important question for legal blogging: Does it keep you from writing something to the effect of “if you have been hurt in a car accident, you need legal representation to get the compensation you deserve” in your call to action? We doubt that it would go so far, as phrases like these are so overdone in a call to action that it probably doesn’t create this perception, anymore. However, it bears monitoring.
Other, more subtle changes to Rule 7.1’s Old Comments reveal a broader scope to the Rules, as a whole. In the New Comment 3 to Rule 7.1—which replaces “[a]n advertisement” with “[a] communication”—we’re seeing a hint that the Model Rules are being brought up to date with an understanding that what constitutes an advertisement, per se, is no longer clear and evident.
The bulk of the revision to Old Rule 7.1 is the four new comments added on to the end of it. These are the remnants of Old Rule 7.5, now deleted in its entirety, which had dealt with the names of law firms and what could be included on their letterheads. While there are few changes to these rules on letterhead and firm names, an important thing to note is that they now apply to the internet and social media, as well: New Comment 5 states, “[a] lawyer or law firm also may be designated by a distinctive website address, social media username or comparable professional designation that is not misleading.” Something to keep in mind when you are creating a Facebook page for your firm or getting your Twitter game off the ground.
Rule 7.2: Specific Rules
Model Rule 7.2 was heavily revised.
Like the New Comment 3 to Rule 7.1, the New Rule 7.2(a) is broader, and highlights the ABA’s clear interest in bringing the rules governing attorney advertising out of the dark ages, without making groundbreaking changes.
New Rule 7.2(b) deals with referral fees. Changes to this Rule have garnered much of the attention that the revision has created. However, we don’t expect it to have much, if any, impact on online legal marketing outside of potential quid pro quo link schemes and soliciting positive online reviews. Agreeing with another firm to link to each other’s website—improving your backlink portfolio and scoring points on the search engine optimization (SEO) front—is an easily detectable black hat SEO move that does more harm than good, already. Now it might also violate the Model Rules of Professional Responsibility. The same goes for soliciting positive online reviews by offering, for example, tickets to the zoo for a 5-star rating on Google.
New Rule 7.2(c), though, does have implications for legal blogging because it incorporates Old Rule 7.4, which dealt with when and whether you could claim to be a specialist in a particular field of law. In fact, this revision is enough to warrant another blog post.
Finally, a minor change to Rule 7.2(d) is a watershed moment in the development of the legal services industry. The New Rule no longer requires you to include “the name and office address” of a lawyer or law firm responsible for a legal advertisement. Instead, only the name and the “contact information” of the lawyer or firm is required, a surprising head nod to the evolution and internet-heavy field of law, in general, and to exclusively online law firms, in particular.
Rule 7.3: Solicitation of Clients
Model Rule 7.3 was also heavily altered in the ABA’s new revision. However, one of the key additions to the New Rule 7.3 was the new Rule 7.3(a), which defines a “solicitation” by incorporating one of Virginia’s ethical rules. Importantly for legal blogging, this definition is narrow enough that online marketing escapes. In fact, New Comment 1 to Rule 7.3 states: “A lawyer’s communication is not a solicitation if it is directed to the general public, such as through… an Internet banner advertisement, a website… or is automatically generated in response to electronic searches.”
Your law firm’s website and legal blog, therefore, are not “solicitations” under the New Model Rule 7.3, do not “solicit” potential clients, and escape the regulations laid out in New Rule 7.3.
But what about social media? Online chatrooms? Twitter?
New Comment 2, which sheds light on the “live person-to-person contact” that much of New Rule 7.3 is worried about, explicitly excludes “chat rooms, text messages or other written communications that recipients may easily disregard” from the scope of that contact. Facebook messages, Tweets, responses on Reddit, all are outside the gambit of the New Model Rule 7.3.
That doesn’t mean that New Rule 7.3 can be completely disregarded, though. An important deletion can impact the vast majority of law firm websites on the internet: Gone is the section requiring your website to include the phrase “Advertising Material” at the end. This change—apparently the result of one of the most heated exchanges during the revision process, but largely ignored afterwards—was made because the requirement was “no longer necessary to protect the public.” Everyone knows that legal websites are advertising materials, so requiring law firms to take the step of identifying their site as such was needless.
Rule 7.4: Communication of Fields of Practice and Specialization
Rule 7.4 gets completely swallowed by New Rule 7.2, becoming 7.2(c). From a formatting perspective, this move makes sense—whether you can call yourself or your firm a “specialist” in a given field of law is just a particular application of the general rules of communication of your legal services.
As we mentioned earlier, we’ll cover this particular rule change in next week’s blog post, as it has serious implications on how you attack your call to action in online marketing materials.
Rule 7.5: Law Firm Names and Letterhead Regulations
Finally, the ABA’s revision also guts Rule 7.5, moving its substance into Comments 5 through 8 for New Rule 7.1.
The terms dealing with your law firm name, however, now include how you can refer to your firm in your website’s domain name, and on the firm’s social media accounts. Reviewing the changes, which we mentioned above in the section dealing with the New Rule 7.1, can be worthwhile if you’re setting up a new firm.
How Does This Change Your Firm’s Online Marketing Strategy, Today?
It doesn’t.
Remember, these are just the Model Rules. It is now up to the states to adopt the ABA’s changes, reject them, or take them on in some modified form. Unless and until your state takes action, nothing changes for your law firm’s online marketing efforts.
How Should It Change Your Marketing Efforts, in the Future?
Perhaps the single greatest change that the New Model Rule 7 does for online marketing is make it evident that legal blogs are commercial speech, and fall within the rules and regulations of attorney advertising. By replacing “advertisement” with “communication,” and increasing the scope of the rules dictating what you can do with your firm’s name to include your website’s domain name and the usernames of your social media accounts, the New Rule 7 substantially broadens its reach to include online advertising techniques like inbound content marketing.
However, the revision also draws an important line in the sand with New Rule 7.3, which makes it clear that your online inbound content marketing—like your website and legal blog—are not solicitations that can only target certain sections of the public.