CBA Record November 2018

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/.

BY JOHN LEVIN New ABA Advertising Rules

I n August, 2018, the ABA adopted amendments to Model Rules of Pro- fessional Conduct 7.1 through 7.5 governing advertising by lawyers. The amendments came after several years of study. As stated in the report of the Chair of Standing Committee on Ethics and Professional Responsibility, the principal amendments: “Combine provisions on false and misleading communications into Rule 7.1 and its Comments. Consolidate specific provisions on advertising into Rule 7.2, including requirements for use of the term “certified specialist”. Permit nominal “thank you” gifts under certain conditions as an exception to the general prohibition against paying for recommendations. Define solicitation as ‘a communica- tion initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to pro- vide, legal services for that matter.’ Prohibit live, person-to-person solicitation for pecuniary gain with certain exceptions. Eliminate the labeling requirement for targeted mailings but continue to prohibit targeted mailings that are misleading, John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

involve coercion, duress or harassment, or that involve a target of the solicitation who has made known to the lawyer a desire not to be solicited.” Without question, the amendments make the Rules much easier to follow and eliminate several of the unnecessary technical provisions and restrictions on communication. The main focus of the Rules continues to be set out in Rule 7.1: “A lawyer shall not make a false or mis- leading communication about the lawyer or the lawyer’s services.” All in all, the amendments improve the existing Rules. Much of the online commentary concurs, but also warns that it is important that the changes be adopted by all the states so that interstate communications are governed by the same set of Rules. However, major issues of special interest to Illinois lawyers remain. First, the Chicago Bar Foundation is considering proposing amendments to the Illinois Rules relating to marketing and communications. The purpose of the amendments is to simplify the Rules and improve access to justice by allowing lawyers to communicate freely to potential clients (with only limited restric- tions) so long as the communication is not false or misleading. The proposed amend- ments are currently in the discussion stage. The second issue, and the elephant in the room, is whether or not a lawyer may participate in a program that connects the lawyer with a potential client in which the owner of the program receives a fee for providing the service. This question has been the subject of numerous state and local ethics opinions over the past several years, as well as magazine and blog articles (including this column). The ABA has finessed the question. While Model Rule 7.2 has been amended,

ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit-

tee can help. Submit hypothetical questions to

Loretta Wells, CBA Government Affairs Direc-

tor, by fax 312/554-2054 or e-mail lwells@

chicagobar.org.

it still provides that a “lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services”. An exception is made for “the usual charges of a legal service plan or a not-for-profit or qualified refer- ral service”, but for-profit providers such a LegalZoom, UpCounsel or AVVO are not covered. Similarly, Rule 5.4, which prohibits sharing a fee with a non-lawyer, has not been amended. Arguments have been made that this restriction should be modified and lawyers be permitted to compensate referral ser- vices under the proper circumstances. The major rationales are that of providing access to justice to the underserved community and providing access to work to under- employed lawyers. The Illinois Attorney Registration and Disciplinary Commission has put out for comment an extensive study of client-lawyer matching services and the extent to which they should be permitted under the Rules. (A copy of the study is available on the ARDC’s website.) The Chicago Bar Foundation proposal and the ARDC study and proposals will be the subject of future columns. In the meantime, the Illinois Supreme Court has a number of major issues to consider.

46 NOVEMBER 2018