Enforcement put on hold as Bar seeks Supreme Court clarification
By Gary Blankenship
Advertisements that lawyers send to other attorneys must comply with the Bar’s advertising regulations, including being submitted for Bar review if the ads contain more than basic information, the Board of Governors has decided.
But the board, at its August 17 meeting in Palm Beach, also voted to have a moratorium on enforcing the rules on lawyer-to-lawyer ads — as well as ads sent to current or former clients — as it seeks clarification from the Supreme Court on advertising rules that were revised last year.
The board acted as it considered two appeals on ads submitted for Bar review where lawyers were seeking to send ads to other lawyers to encourage them to refer their clients to the soliciting lawyers.
Board member Larry Sellers, vice chair of the Board Review Committee on Professional Ethics, which reviews advertising appeals, said the panel recommended that the advertising rules apply to the ads because of changes made to the ad rules last year.
Since the inception of advertising rules in 1991, a comment to Rule 4-7.1 had said that advertisements sent to other lawyers were exempt from the rules. A special committee studying the advertising rules recommended incorporating that provision into the body of the rules, and the Bar agreed.
But when the Supreme Court issued its opinion on the ad rules, it accepted a recommendation exempting communications to family members, but declined to adopt the proposed rule on advertisements to other lawyers and current or former clients. It did, however, invite the Bar to submit further information on the issue.
At the same time, the court struck from the rule comment the exception for other lawyers and a proposed exemption for current or former clients.
“The Supreme Court declined to adopt a specific rule saying that communications between attorneys were not subject to the advertising rules,” Sellers told the board.
He added that the issue had never been considered before because of the comment, “but the court, sua sponte, amended the rules and struck that comment.”
“The Board Review Committee did that [made its recommendation] because we are in a position where we have no choice,” board and BRC member Steve Chaykin said.
“The Supreme Court has made a decision . . . that lawyer-to-lawyer communications are not exempt.”
Board member Chobee Ebbets, who was vice chair of the committee that recommended the rule changes and who attended the oral arguments on the ad rule amendments, noted that the justices were very concerned about lawyer-to-lawyer advertisements.
“The court let us know they were not happy about this and they were going to do something about it,” he said. “We don’t think it should be regulated. We think lawyers understand what they are getting. But the Supreme Court said, ‘You’re wrong.’”
Board member Ben Kuehne argued that if the board approved the BRC motion, it should then approve a moratorium on enforcement.
“The way I understand the Supreme Court ruling, they say, ‘We defer adoption of those two exemptions at the moment.’ I don’t read that language as the Supreme Court rejected our exemptions. They did not rule on it . . . . It seems like this issue is still in play,” he said. “We may be able to gather information about lawyers who want to do lawyer-to-lawyer advertising. It seems to me that it is a disservice to our constituents, to our lawyers, to enforce the rule that the Supreme Court is seemingly willing to consider when the Bar gives it more information.”
Board member David Rothman said a moratorium would be fair to Bar members, who have had little notice of this change in the advertising rule, which became effective January 1, but has had little attention.
“My only concern is that the lawyers know what is going on,” he said. “We don’t have the ability to overrule the Supreme Court, but we have to let the lawyers know this may be a problem. It looks like the landscape has changed and this ultimately could result in some type of prosecution.
“This is something they have to know. The Supreme Court has deleted that which we treated as an exemption.”
The board ultimately took two votes. It first approved the BRC recommendation, 27-9, that lawyer-to-lawyer advertisements are now covered by Bar advertising rules.
It then passed on a voice vote Kuehne’s motion to have a moratorium on enforcing the rule on ads sent to other lawyers as well as current or former clients.
Kuehne rejected suggestions the vote might be seen as a challenge to the court.
“This seems like such a sea change in the advertising rules that we have an obligation to inform our members. Sending a copy of an article they wrote to other lawyers can be seen as a form of advertising,” he said.
“It’s consistent with what the Supreme Court sought, which is getting input on this. We don’t want to impose discipline or controversy where the rules may change on something that has been so established for many years.”
Ebbets cautioned, though, that the court has clearly signaled its intent, although the moratorium may be needed to give lawyers time to adjust.
He noted that the Bar had a moratorium on enforcing the ad rules regarding lawyer Web sites while specific rules regarding those were being worked out.
“The Supreme Court clearly told us that they think that brochures between lawyers should be regulated,” he said.
Bar Ethics Counsel Elizabeth Tarbert told the board that the Bar has a motion pending at the court seeking clarification on some other areas of the advertising rules.
When the court acts on that, she said Bar staff is ready to file further information on the lawyer-to-lawyer issue as well as ads sent to current or former clients.
She said no further board action is needed because the issues were thoroughly discussed by the special committee that drafted the rule changes and by the board.
The board’s action, if eventually enforced, could have a great impact on lawyer-to-lawyer ads and communications sent to former and current clients.
Under the old rules, such communications were subject only to general rules that they not be false, deceptive, or misleading.
But under advertising rules, lawyers would be prohibited from characterizing the quality of their services, using client endorsements, or referring to past results, as they are in unsolicited print and broadcast ads aimed at nonlawyers and nonclients.