Lawyer Advertising Reform: Not Soaking In it Yet

The Association of Professional Responsibility Lawyers (APRL) has proposed to eliminate the current thicket of lawyer advertising rules with “a single rule that prohibits false and misleading communications about a lawyer or the lawyer’s services.”  (2015 report of the APRL Regulation of Lawyer Advertising Committee, at page 3.)   That remarkable fact is followed by one perhaps even more remarkable.  At a joint meeting with APRL’s institutional opposition, the National Organization of Bar Counsel (NOBC), held in Chicago on July 31, that proposal did not seem to stir serious opposition.

The legal profession has become so many specialities and sub-specialities that often seem to little to do with each other.    The lawyers who work in attorney discipline and regulation have similarly become specialized, with professional discipline prosecutors who often face up in the trenches with professional discipline defense counsel who specialize in this area and little else.  The prosecutors have their professional organization NOBC, whose roots go way back to the mid-1960’s, even before seminal Clark Commission Report in 1970.  That study with its trenchant criticism of the “slow, secretive” attorney discipline processes in almost all states, precipitated a wave of professional reform in the discipline machinery nationwide, including further professionalizing the ranks of discipline prosecutors.   APRL came along much later, when some lawyers who were professional discipline prosecutors made the logical transition to full time defense of respondent lawyers in those discipline proceedings.  Charles Kettlewell, the founder of APRL, had been a former discipline prosecutor active in the NOBC.  So the path from professional discipline prosecutor to professional discipline prosecutor is a well trod one, including many of the lawyers who defend discipline cases in California.

Their positions are analagous to criminal prosecutors and criminal defense lawyers. And just as in that world, there is often little love lost between discipline prosecutors and discipline defense counsel.   Discipline, like most litigation processes, is an adversarial process, something that is not always grasped by the public, or the public watchdogs.  The old collegial world of law practice where you could fight like caged animals in court during the day and go out for a drink together in the evening, to the extent it really existed, was washed away in the same wave of specialization that helped to create discipline specialists on both sides of the ball.   Yet, for the same reasons, a bond is created between you and your institutional adversary; after all, who else really has any insight into your world.   This is especially true in the relative small world of attorney discipline.

But agreement is rare and to the extent that there is agreement on changing the current structure of lawyer advertising, it is due to two things.  One, the meticulous process employed by the APRL Committee, including input by the NOBC and the ABA Center for Professional Responsibility .  Second, the glaring reality that the world that the created the filigreed systems of regulation embodied in California Rule of Professional Conduct 1-400 and our Business and Professional Code sections 6157  et seq.  just doesn’t exist anymore.

So glaring that even discipline prosecutors can see it.  One of most telling moments at the joint meeting between APRL and NOBC was when John Berry,  head of the Legal Division of The Florida Bar, stood and commented that the report deserved to be closely looked at in light of recent events.  The Florida Bar had been one of the most aggressive regulators on the issue of attorney advertising and Mr.  Berry might have been thinking of Rubinstein v. Florida Bar, the recent Federal Court decision striking down Florida advertising rules purporting to ban lawyers from citing past results in their advertising.   The same thing happened to New York rules in 2007.   And the Louisiana rules in 2011.  The Federal Courts, consistent with the robust First Amendment message being sent from on high, have said that Central Hudson really does mean what it says about compelling state interest.

The deeper reality is that the legal profession is following the lead of our consumer culture.   When it comes to advertising and solicitation, to paraphrase Madge, you are not just reading it, you are soaking in it.

I have read the average consumer is exposed to over 3,000 advertising messages a day.  Even if it that figure isn’t accurate, it certainly feels like 3,000 or more.  Moreover, it has become an accepted feature of our culture since the rise of digital social media, that all of now, more than ever, commoditizing ourselves, even in our social interactions.   It is hard to make earnest arguments for the dignity of the legal profession or whatever when an earnest Presidential candidate (and Harvard trained lawyer) is frying bacon with a automatic rifle to sell himself for the highest office in the land.  The legal profession fell off its pedestal some time ago in the public eye;  we are selling a commodity just like Palmolive dish soap or red meat Republicanism.

It has been a cliché for decades now that the only people who complain about lawyer advertising are other lawyers, and they still do, with little or no effect except to call the lawyer’s attention to some minor rule or standard that had escaped attention.   A favorite:  Rule 1-400, Standard 9, which purports to create a rebuttable presumption that the use of a “firm name, trade name, fictitious name, or other professional designation… which differs materially from any other such designation used by such member or law firm at the same time in the same community” is misleading.  I have tried to explain this provision to lawyers who want to brand particular types of services with different firm names without successs.  I tell them to imagine that the Rules of Professional Conduct were written for a small city of 75,000 people with 500 lawyers in 1974 and they begin to understand.

California is undertaking a project to revisit its Rules of Profession Conduct and it is to be hoped that the Commission takes a long look at the APRL report and recommends some major changes to our advertising rules.  But don’t get too hopeful.   Whatever changes that Commission might propose would not affect the “Larry Parker” statutes contained in the Business and Professions Code.   Those are not going away any time soon.

 

Do We Need Advertising Rules?

A startling thought given voice at the recent meeting of the Association of Professional Responsibility Lawyers (APRL) in Boston.  As I understand the concept, in the language most other jurisdictions speak, Model Rules 7.1 – 7.6 are not necessary in light of Model Rule 8.4’s prohibition on dishonesty.  Californians would look to our twin constellations of Rule 1-400 and Bus. & Prof. Code sections 6157 et seq.

Both the Model Rules and California law set forth rather detailed schemes dictating the form and content of attorney advertising.  By comparison, California’s false advertising statute Bus. & Prof. Code section 17500, offers a relatively concise scheme generally applicable to businesses (and expressly inapplicable to lawyers alone under section 17500.1.)  What real function does the rest of the filigree in the lawyers’ codes serve, so the argument goes. The real danger is dishonest or misleading advertising, so we only need a rule against that.

In the discipline world, that has a degree of truth as what we are generally fighting about is whether the advertising is “false, deceptive, or which tends to confuse, deceive, or mislead the public” under Rule 1-400(d)(2), which is roughly comparable to Bus. & Prof. Code section 6157 and Model Rule 7.1.  Most of the rest comes into play in California in the context of advising clients as to what the law requires.

The significance of the question lies less in the answer than in the fact that the question is seriously asked.  Why exactly does section 17500.1 exist and how is the lawyering business really different from any other business? The issuance of the Canadian Bar Association report on the future delivery of legal services casts a light that puts these questions in sharp relief.  Lawyer advertising was, after all, originally approved based on the rationale that it would help expand the availability of legal services and lower the cost (Bates v. State Bar of Arizona (1977) 433 U.S. 350.)  It hasn’t worked out that way.  Now those concerns are imperative to the survival of the legal profession.  Of course, if the CBA approach is followed, we are going to being junking a lot more than the advertising rules.