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NEW ABA RULES: Adopting them essential in Wisconsin

By Kim Perret
Legal Marketing Association

Kim Perret is a chief marketing officer and co-chair of the Legal Marketing Association’s ethics and legal marketing working group.

Kim Perret is a chief marketing officer and co-chair of the Legal Marketing Association’s ethics and legal marketing working group.

There is an urgent need for consistency throughout the country in how legal services are marketed and delivered.

Most lawyers, including those in Wisconsin, are being unnecessarily forced to abide by outdated rules that serve neither them nor their clients. Fortunately, there is a solution that will benefit everyone: state adoption of the revised ABA model rules.

New ABA Model Rules bringing up to date how attorneys can market and advertise their services were put in place more than a year ago. But only a handful of states, including Pennsylvania, California, Illinois and Connecticut, have adopted them. Here is some important information on recent events leading up to these rules, what’s at stake and why it’s important to place a high priority on state adoption.

How we got here

In 2018, the ABA approved revisions to its Model Rules 7.1 – 7.3 (formerly 7.1 – 7.5) to bring up to date the ways that attorneys can ethically market and advertise their services. The rules still rightly help ensure attorneys do not mislead or “over-promise” results to their clients by setting limits related to truthfulness in client communications and advertising, the promotion of lawyer specialties and even the use of firm names and letterhead. The Association of Professional Responsibility Lawyers worked closely with the ABA’s Standing Committee on Ethics and Professional Responsibility to bring the revised rules to fruition, because while business and business technology were rapidly changing, the rules were lagging behind.

Just how behind are these rules still? In many states, the rules continue to include references to fax machines and no mention of social media or other online marketing. Most importantly, the rules do not reflect how attorneys and law firms are practicing law and representing clients.

Access to justice is at stake

The legal profession will continue to evolve and progress, as will the ways lawyers engage and communicate with their clients – both consumers and businesses. Lawyers must have consistent guidelines to follow as they direct marketing toward clients in ever more sophisticated ways. The rules should keep up for the sake of our profession, and more importantly, the clients we serve.

With clear, uniform rules in place, clients will receive better access to information about and from attorneys. The new ABA rules provide consistency and simplicity, establishing a level playing field nationwide, across state lines. With workable rules governing communications, there will be no confusion from jurisdiction to jurisdiction, no rule-breaking and no ambiguity. The lack of state adoption is an impediment to progress.

The way lawyers and firms market and share information about access to legal services continues to change and become ever more sophisticated each year. The adoption of the new rules will establish a more transparent standard that allows lawyers to inform potential clients of their availability and suitability to meet specific needs.

And let’s not forget the next generation of clients who will without doubt search for lawyers using technology and social media, rather than the yellow pages – as well as learn more about their experience. To stay relevant, law firms and the professionals they employ must be empowered, if not encouraged, to make use of the latest ways to communicate with the public – ethically and successfully for all parties.

The time to act is now

For these and other reasons, states’ adoption of the rules can’t be put off any longer. Research has shown that most state bars are spending their time on the wrong things – such as worrying about website content instead of how lawyers deliver their services. A more important priority, for example, is whether or not paraprofessionals’ responsibilities should be expanded to provide more help to clients.

The bottom line: All states must follow suit now. Wisconsin’s adoption of the rules would protect the public from misleading information, improve access to justice and provide widely understood guidance to ensure law firms can adhere to the rules. Lawyers must be able to communicate effectively with clients and those in need of representation.

Legal marketers are working with states to encourage them to adopt the rules and, of course, are working with firms to ensure they are followed. There is a lot at stake for this part of our profession as well. Legal marketers’ role within a law firm (much of it, anyway) is to provide attorneys and clients with guidance on their communications and how to best use technology. With state laws so fragmented, deciphering what is permissible state by state, as well as adhering to it, is cumbersome at best.

At the end of the day, the rules should protect everyone, including clients and lawyers. It’s time for states to take steps toward adopting the rules. Get in touch with your state bar delegates to voice your support.

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