Another Self-Inflicted Barrier to Access to Justice: The Rules Governing Lawyer Marketing and Advertising

May 25, 2017

By Bob Glaves  |  CBF Executive Director

Many thousands of Illinoisans who need or would benefit from legal assistance and can afford to pay something aren’t getting it. They often don’t recognize their problem as a legal one, and when they do, they too often don’t know where to go for quality legal help or whether it would be a cost-effective solution for them. At the same time, we have more lawyers than ever before, most of whom have capacity and interest in helping more paying clients. In economics, this is called a market failure, and our profession is compounding this failure by unnecessarily restraining market forces from fixing the problem.

In last month’s post, I wrote about one of the fundamental ways our profession aggravates this market failure in access to justice: our rules limiting ownership and investment in law firms to only lawyers. Our overly restrictive rules on marketing and advertising are another way our profession unnecessarily makes it more difficult to close the gap in access to justice.

In the rest of the business world, an untapped market like this is met with sophisticated marketing and advertising campaigns to educate and attract consumers. Lawyers, however, face a far more difficult challenge in doing this under the current Rules of Professional Conduct. And it is people in need of legal help who ultimately suffer.

The Relevant Rules

The principal Rules impacting marketing and advertising for lawyers are Rules 7.1 through 7.4 of the Illinois Rules of Professional Conduct. Like the Rule regarding ownership and investment in law firms, the overall intent of these Rules is laudable: to protect clients. But along with helping to protect clients from false or misleading communications and coercive or harassing behavior, the Rules have the effect of making it harder for people to understand their legal issues and to find quality, affordable legal help to address those issues.

These Rules start in the right place. Rule 7.1 prohibits lawyers from making false or misleading communications about their credentials or services. That is as it should be.

Similarly, Rule 7.3 at its core serves an important purpose by prohibiting solicitation of clients through coercion, duress or harassment.

It is elsewhere in Rule 7.3, and in Rules 7.2 and 7.4, where the Rules get overly prescriptive and excessively limiting.

Rule 7.3 with limited exceptions prohibits solicitation when a client is “known to be in need of legal services.” And when it is permitted, Rule 7.3 goes on to require that the words “Advertising Material” be included on any communication that is considered a solicitation of this nature.

Rule 7.2 says a lawyer can advertise in a number of ways but can’t pay someone for a communication that recommends the lawyer’s services. As the comment to the Rule 7.2 states, “A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.”

With limited exceptions, Rule 7.4 prevents lawyers from stating that they specialize or are expert in a particular area of law.

What Clients Need

As I noted in a recent post about why people don’t have lawyers when they are facing legal issues, the biggest reason is because people don’t recognize their problem as a legal issue. Secondary issues include people not knowing how or where to find quality legal help, whether they can afford it, and questions about whether they are getting good value for the price.

While some of these issues reflect other fundamental problems, like the lack of transparency and predictability in pricing, these are issues where marketing and advertising can help people understand their legal issues, evaluate their options, and find quality and affordable legal help. With the continued growth of social media and other new communication channels, there are even more outlets available for this outreach. But our current Rules are hindering lawyers from most effectively connecting with people who need legal help.

Where the Current Rules Leave Us

The combined impact of our current Rules is that most lawyers are regularly confused about what they can and can’t do when it comes to advertising. This has led to a culture where, with some notable exceptions, marketing and advertising from lawyers is far more limited than it should be to be useful to the public.

On the one hand, we all see the TV ads from lawyers pitching their services for matters like personal injury and bankruptcy. With occasional exceptions, these ads do not showcase our profession at its finest or necessarily help people to better understand their legal issues. These ads are permitted under the current Rules though.

On the other hand, a potential client might reach out directly over social media suggesting they have a legal problem they are looking to resolve, which they may or may not recognize as a legal issue. It isn’t clear under the Rules whether a lawyer can respond with an offer of their legal services, and if so, whether the lawyer needs to preface that response with “Advertising Material.”

There are a whole lot of examples in between these two scenarios where the lawyer would not be doing anything deceptive or coercive yet it still isn’t clear whether their marketing and advertising efforts would be in line with the Rules.

Beyond limiting lawyers from most effectively connecting to potential clients in the consumer and small business markets, the current Rules also make it much harder than it should be for a potential client to learn whether a lawyer is any good at what they do. Lawyers are limited in saying they specialize or are expert in any particular area even when they are widely recognized as such, and other entities who might be able to recommend a lawyer on that basis (e.g. an association or network) generally can’t do that if the lawyer is paying anything to that entity.

Obviously, we don’t want to have lawyers trying to “buy” unwarranted recommendations or falsely state they have credentials or experience they do not possess. But that kind of behavior already would violate the Rules as false or misleading, and we should rethink whether we need all of these other Rules that limit “endorsement” advertising that could help the public connect to quality legal help.

A Proposal to Streamline the Rules Going Forward

As we think about these issues, it is useful to compare what we see from other legal businesses like Avvo, ARAG, or Legal Zoom to the type of marketing and advertising that is more typical of lawyers serving the consumer and small business markets. These other legal providers are using tried and true tactics from other businesses and professions to help people understand when they might benefit from legal help and then trying to connect to them with resources to provide that assistance. While lawyers arguably already have the potential to adopt many of these methods under the current Rules, it would be a whole lot easier for them to do so if the Rules were streamlined and clarified.

The Rules should more clearly recognize that there is a big difference between coercive solicitations (e.g., the proverbial ambulance chasing) or harassing a client who has made it known that they don’t want to be contacted, compared to a lawyer letting a potential client know he or she might be able to help them by providing legal services and has the requisite experience and expertise to do so.

So here’s a proposal: Keep the prohibitions on false or misleading advertising and coercive or harassing solicitation, and scrap all of the other prescriptions and proscriptions on marketing and advertising under the current Rules. This would continue to protect the public from bad behavior while putting lawyers on equal footing with other businesses and professions when it comes to marketing and advertising.

These changes would remove the stigma that persists around lawyer advertising and help unleash market forces to address the current market failure in the consumer and small business markets for legal services. And the end result should be that people have access to a wider range of information and resources to help them better understand their legal issues, evaluate their legal options, and more easily find quality, value-based and cost-effective legal services.

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