CBA Record Feb-March 2017

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50 FEBRUARY/MARCH 2017
LEGAL ETHICS
BY JOHN LEVIN
Attorney Advertising and Solicitation–
a New Look
Times change. Advances in technol-
ogy (as well as changes in what
behavior is considered to be profes-
sional and dignified) are prompting revi-
sions to the ABA Model Rules concerning
advertising and solicitation. When I first
began practicing law, attorneys could not
and did not advertise. Since then, a series of
Supreme Court decisions mandated grant-
ing attorneys limited rights to advertise. I
recall contentious meetings of the CBA
Professional Responsibility Committee
at which current Illinois Rules of Profes-
sional Responsibility 7.1–7.5 (and their
predecessors) were debated. The very idea
of lawyers engaging in an “active quest
for clients” was felt to be unprofessional
and undignified. Nevertheless, the “active
quest” was permitted.
The June 22, 2015 Report of the Regu-
lation of Lawyer Advertising Committee of
the Association of Professional Responsi-
bility Lawyers (APRL) stated: “The basic
problem with the current state patchwork
of lawyer advertising regulations lies with
the increasingly complex array of incon-
sistent and divergent state rules that fail to
deal with evolving technology and innova-
tions in the delivery and marketing of legal
John Levin is the retired Assis-
tant General Counsel of GATX
Corporation and a member of
the CBARecord Editorial Board.
John Levin’s Ethics columns,
which are published in each
CBA Record, are now in-
dexed and available online.
For more, go to
legalethics/.
services. 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.”
In response to this concern, the APRL has
recommended amendments to ABAModel
Rules 7.1 through 7.5.
Importantly, Rule 7.1–“A lawyer shall
not make a false or misleading commu-
nication about the lawyer or the lawyer’s
services”–remains unchanged. However,
many of the specific technical provisions
of Rules 7.4 (Communication of Fields
of Practice and Specialization)–7.5 (Firm
Names and Letterheads) have been reduced
to comments to Rule 7.1. Most of the rec-
ommended changes bring the Model Rules
into compliance with various court deci-
sions concerning advertising. The proposed
new rules also recognize the advancements
in the use of electronic advertising and the
social media. The procedural effect of these
consolidations may be to reduce the penal-
ties for violation of technical advertising
requirements.
A somewhat more substantive change
involves the (renumbered) Rule 7.2 (Solici-
tation). The APRL considered the issue
of solicitation of clients in the context of
internet communication and social media.
The prohibition against direct client solici-
tation is that lawyers, by training, may be
able overwhelm the potential client by
persuasive argument. The current rule
prohibits direct solicitation by “in-person,
live telephone or real-time electronic”
contact. In its 2016 Supplemental Report,
the APRL stated: “when considering other
means of solicitation, for example, through
chat rooms, social media, text messaging,
instant messaging, etc.,” regulation of those
contacts is justified only if the solicitation
occurs under circumstances that are “inher-
ently conducive to overreaching or other
forms of misconduct.” The proposed new
rule omits “real-time electronic” contact
from the prohibited list, though the com-
ments reflect a concern over possible abuse.
Space does not permit discussion of all
of the subtleties of the proposed changes.
By and large, they would have little effect in
Illinois other than to bring our rules more
into compliance with current case law and
the state of current communication tech-
nology. The ABA is considering whether
to adopt the proposals. The proposals and
background materials are available on the
ABA’s website. It behooves us to pay atten-
tion to the ongoing discussion.
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@
.