CBA Record

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 Attorney Advertising and Solicitation– a New Look T imes change. Advances in technol- ogy (as well as changes in what behavior is considered to be profes-

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@ chicagobar.org.

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,

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.

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