Attorney advertising regulations are overly restrictive and underenforced, according to a new report by the Association of Professional Responsibility Lawyers (APRL).
From the report:
Simply stated, current regulations of lawyer advertising are unworkable and fail to achieve their stated objectives. Survey results show that there are too many state deviations from the ABA Model Rules, actual formal lawyer discipline imposed for advertising violations is rare, lawyers are disheartened by the burden of attempting to determine which regulations apply to the ever-changing technological options for advertising, and consumers of legal services want more, not less, information about legal services. 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 service 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.
The report is based, in part, on information collected from disciplinary authorities throughout the country in response to a survey, which is contained in Attachment 3 to the Report. According to the report, the survey responses confirmed that:
- complaints about lawyer advertising are rare;
- people who complain are predominantly other lawyers, not consumers (78% vs. 3%);
- most complaints are handled informally, even where there is a provable advertising rule violation;
- few states engage in active monitoring of lawyer advertisements (only 17%); and
- many cases in which discipline has been imposed involve conduct that would also violate Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).
The report recommends dramatic changes to the advertising provisions of the ABA Model Rules of Professional Conduct. APRL's proposed change is simple. Eliminate all advertising rules except for prohibitions on false and misleading communications. (The report does not address solicitation rules and incorporates some of the concepts from the deleted advertising rules into the comments as "practical guidance on what conduct or statements may fall within the prohibited category of 'false and misleading' and what statements are not considered misleading"). The goals of APRL's proposed revisions are (1) to establish "a uniform and simplified rule that prohibits false and misleading advertisements"; and (2) to ensure "that consumers have access to accurate information about legal services while not being deceived by members of the Bar."
The report also recommends that states implement a non-disciplinary framework for dealing with lawyer advertising, which would give lawyers an opportunity to remedy advertising violations before a complaint is processed as a disciplinary matter.