Proposed ABA Amendments on Lawyer Advertising Don’t Benefit Consumers’ Rights or Protection

Written by Carolyn Mobley

Responsive Law has submitted comments opposing the American Bar Association’s amendments to rules on lawyer advertising because the amendments do not do enough to improve and streamline those rules.

The proposed amendments were loosely based on a report from the Association of Professional Responsibility Lawyers (APRL), which is the leading lawyer ethics association, but the amendments proposed by the ABA are a very watered down version of those recommendations. The APRL report recommended significant changes that would have simplified rules regarding lawyer advertising, which would improve lawyers’ abilities to inform consumers of their legal needs and services available to them. However, in the ABA’s 2017 version of these recommendations it removed many of APRL’s recommendations to streamline the advertising regulations. After the ABA’s 2017 version was edited again, the 2018 version had removed so many recommendations that the changes to the existing rules were reduced to almost nothing. Instead, the current ABA proposal has only changed minor details and avoided the larger problems with lawyer advertising restrictions, rather than addressing the issues with the present rules that prevent lawyers from aiding their customers and making their services more accessible.
 
These changes to advertising rules would raise public awareness of lawyer services and make those services more user-friendly. Although people often think that lawyer ads are cheesy, ads provide very useful information about what is available to consumers. For many businesses and services, advertising plays an important role in helping educate the public about how a certain type of service may benefit them. For example, even if a Jiffy Lube commercial doesn’t convince a consumer to go to Jiffy Lube, it’s likely to remind them to get their car’s oil changed regularly. Similarly, an ad for will services can remind consumers of this important document that they need to create. Unfortunately, due to picayune restrictions on lawyer advertising, many lawyers shy away from creating these ads. Instead of promoting sweeping regulations that restrict the flow of information, restrictions on lawyer advertising should be limited to situations where the benefit of information is outweighed by the harm that the information can cause to consumers.
 
The current rules, which serve as a model for similar restrictions in states nationwide, unnecessarily stifle lawyers’ ability to promote services in innovative ways that are more likely to reach consumers. The rules provide a huge range of vague wording and unnecessary detail. To avoid getting in trouble, lawyers approach vague terms about advertising prices and quality qualifications very strictly and many shy away from advertising in general. For example, a lot of businesses claim to be the best in their field and consumers recognize that this is ordinary puffery. However, in many cases, the lawyer advertising rules have been interpreted to prohibit even this innocuous language. Similar rule interpretations dissuade lawyers from advertising expertise or areas of specialization. As a result, lawyer advertisements are often nonspecific and lack much needed information that could assist consumers in choosing the right lawyer.
 
Despite what many lawyers appear to think, consumers are not stupid. In fact, in the internet era, they’re savvier than they have ever been. If the information that consumers receive from lawyers don’t adhere to the ABA’s strict guidelines, the ABA wrongfully assumes that consumers would be tricked into buying something they do not need. However, consumers expect a lot of information from anyone they’re hiring and they understand how to evaluate the services of anyone trying to sell them something. Furthermore, since public polls have consistently rated lawyers as one of the least trusted professions, consumers are much more likely to put even more caution into their choices on legal help before spending hundreds or even thousands of dollars on a lawyer.
 
Overall, the original APRL report recommended significant steps to streamlining the current lawyer advertising and solicitation rules that would be beneficial to both consumers and lawyers; however, the ABA’s proposed amendments take almost none of the recommendations into account. Responsive Law and APRL recommend that the ABA eliminate rules that provide no protection to consumers, but still prevent them from receiving the information they deserve. Furthermore, the ABA’s rules should focus solely on making sure lawyers do not create false or misleading advertising, not on limiting, for example, the types of advertising that are permitted. Since the ABA has not given APRL’s proposals the weight they merit, we have recommended that the ABA reject the current suggested amendments.
 
You can find Responsive Law’s comments here.

Carolyn Mobley is a Responsive Law Intern.