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Lawyer Advertising Professioa Reposiu Congressional interest in lawyer advertising T'did not expect to receive letters advertisements" if patients stop taking from Congress when I was ap- medically necessary medications. Rep. pointed as director of the Office of Goodlatte offered a specific request: Given the current interest in changes JAL Lawyers Professional Responsibil- and additions to lawyer advertising ity, but that is what my mail contained The legal profession, which prides rules, this is a good time to review the on March 10, 2017. Congressman Bob itself on the ability to self-regulate, current state of Minnesota's Rules of Goodlatte (R-Va.), chair of the U.S. should consider immediately Professional Conduct. Under the broad House of Representatives Committee on adopting common sense reforms heading "Information about Legal the Judiciary, wrote to me and all other that require legal advertising to Services" falls several rules: lawyer regulation offices throughout the contain a clear and conspicuous country on the subject of lawyer adver- admonition to patients not to dis- \ Rule 7.1: Communications tising. The letter begins, "I write to you continue medication without con- Concerning Lawyer's Services; to take immediate action to enhance the sulting their physician. It should H Rule 7.2: Advertising; veracity of attorney advertising." Rep. also consider reminding patients R Rule 7.3: Solicitation of Clients; Goodlatte's specific concern, apparently that the drugs are approved by the O Rule 7.4: Communication of Fields raised initially by the American Medical FDA and that doctors prescribe of Practice and Certification; Association in June 2016, is attorney these medications because of the O Rule 7.5: Firm Names and commercials "which may cause patients overwhelming health benefits Letterheads. to discontinue medically necessary medi- from these drugs. cations," and advocates a requirement The cardinal rule is that "[a] lawyer that such commercials contain an "ap- Rep. Goodlatte's request has been shall not make a false or misleading propriate warning that patients should referred to the Lawyer Professional communication about the lawyer or not discontinue medications without Responsibility Board's Rules Committee the lawyer's services. A communica- seeking the advice of their physician." and Minnesota State Bar Association's tion is false or misleading if it contains a The letter goes on to describe specific Rules of Professional Conduct Com- material misrepresentation of fact or law, commercials, including one relating to mittee for their consideration, and we or omits a fact necessary to make the the drugs Pradaxa and Xarelto, which will see where that leads. It did get me statement considered as a whole not ma- apparently directs thinking about lawyer advertising, how- terially misleading."2 This rule governs individuals to ever-something that the American Bar all communications about a lawyer's call the law firm Association (ABA) is also reviewing. services, not just advertising.3 The rule's at 1-800-BAD- comments note that truthful statements DRUG. Not Currne t efft to mnd Ih e rnu,escan be misleading if facts are omitted, mentioned in At the request of the Association or may impermissibly create unjustified Rep. Goodlatte's of Professional Responsibility Lawyers expectations about results.4 letter-but (APRL), the ABA Standing Committee easily discovered on Ethics and Professional Responsibility through a web is considering potential changes to the search-is the model rules on lawyer advertising. The fact that www. proposed changes involve an essential 1800baddrug.com rewrite of the current model rules by is an alias URL limiting and merging Rules 7.2 and that takes you 7.3 and deleting Rules 7.4 and 7.5.1 No to the website amendments are recommended to the for a Texas law cornerstone rule on communications frm. The letter is concerning a lawyer's services, Rule 7.1, concerned with but the comments to Rule 7.1 would be the apparent expanded to pick up portions of Rules fear-mongering 7.4 and 7.5. The proposed changes are ~Yi~ in these in the review and comment stage and commercials, are apparently a "work in process," with and it notes the earliest anticipated action in May that deadly 2018. Minnesota largely follows the consequences model rules, so it will be interesting to can occur from see where this leads as well. "deceptive 12 Bench&Bar of Minnesota A April 2017 www.mnbar.org Lawyer advertising is expressly per- law except where the lawyer clearly and soliciting clients, which I know you mitted by rule, subject to Rule 7.1 (false identifies the name of the certifying are, you are well-served to take a few or misleading) and Rule 7.3 (solicitation organization, and the certifying agency minutes to review the current rules on of clients).' Lawyers may not give any- is accredited by the Minnesota Board of advertising. It will be interesting to see thing of value to a person recommend- Legal Certification (BLC). If the latter is where the profession moves next, given ing their services except under specified not the case, the communication must the competing interest of protection of circumstances,6 and any advertisement note the agency is not accredited by the public, constitutional commercial must include the name of at least one the BLC.11 speech, and the ever-evolving business lawyer responsible for its content.7 Finally, the rules prohibit trade names orientation of the legal profession. A The rules treat advertisements aimed that imply a connection with a govern- at the public in general differently from mental agency or public or charitable direct communications with specific legal services organization." Lawyers 1 www.americanbar.org/publications/youraba/ individuals who may need a lawyer.8 may not state or imply that they are 2017/march-2017/aba-standing-committee- Specifically, a lawyer cannot solicit work in a partnership or other organization on-ethics-and-professional-responsibility in person or by phone unless the person unless that is a fact,13 or use the name of 2Rule 7.1, Minnesota Rules of Professional contacted is a lawyer, family member, a lawyer holding public office while the Conduct (MRPC). close personal friend, or there is a prior lawyer is not actively and regularly prac- Comment [1], Rule 7.1, MRPC. professional relationship.' Lawyers ticing with the firm." And the use of 4Comment [2], Comment [3], Rule 7.1, may otherwise solicit work by written, the word "Associates" or the phrase "& MRPC. recorded or electronic communication, Associates" in a name can only be used 5Rule 7.2(a), MRPC. but only if it is clearly and conspicuously if there are at least two or three licensed 6 Rule 7.2(b), MRPC. marked "Advertising Material" on the attorneys in the firm, respectively." ?Rule 7.2(c), MRPC. outside of the envelope and on the In 2016, there were five admonitions ' Rule 7.3, MRPC. communication itself-unless, again, that involved violations of one of the 'Rule 7.3(a), MRPC. 1 the person is a lawyer, family member, above -referenced advertising rules, and Rule 7.3(c), MRPC. close personal friend, or there is a prior nine public cases that involved Rule 7.1 " Rule 7.4(d), MRPC. professional relationship." violations. About 5 percent of advisory " Rule 7.5(a), MRPC. A lawyer may not state or imply that opinion calls in 2016 involved questions " Rule 7.5(d), MRPC. the lawyer is a specialist or certified relating to one of the "seven series" 14Rule 7.5(c), MRPC. as a specialist in a particular field of rules. If you are advertising your services " LPRB Opinion 20 (2009). AR Insurance License #100102691 1 CA Insurance License #0G39709 In CA d/b/a Mercer Health & Benefits Insurance Services LLC MAKE TOMOROW, TODAY www.mnbar.org April 2017 A Bench&Bar of Minnesota 13 S'#N~ "~rn k-% 'rrNA e%~K~ 4- *\ tAN "' I V " L) "~~~M K\\~ g 111 N 1\ t Ne vrag> lw e MSBA X, .. Ass........ If's a challenging time to be a lawyer. And frankly it's a challenging time to be a bar association. As the professional lives of lawyers change-whether it's because of the many technological and economic pressures facing us, or the continuing march of legal specialization-the MSBA aims to stay out in front of those changes by tailoring our services to your evolving needs. To do that well, we need up-to-date information from you. Not a lot-basic information like where you work. Your email address. Your employment setting and practice area. And as much demographic information as you feel comfortable sharing. ssyT.
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