Rules 7.1, 7.2, 7.4, 7.5—Advertising, Marketing, and Ethics
I. OVERVIEW
A. Extensive Rule Amendments
In 2018, ABA Model Rules 7.1-7.5 were extensively amended. The amendments generally streamlined the rules and made some rules less strict.
Although Minnesota normally moves promptly to consider and adopt some version of amendments to Model Rules, as of April 1, 2022, petitions of the MSBA and LPRB to adopt the amendments are still pending. The MSBA and LPRB petitions do not have numerous differences. The Supreme Court often makes rules amendments effective as of July 1, so lawyers should be alert to changes in the rule that are effective on July 1, 2022.
B. Scope—"Communication"
The Rule 7 series addresses a topic that is broader than "advertising" or "marketing." The series title, "Information About Legal Services," describes this topic. The 7 series Rules themselves generally use "communication," rather than "information" or "advertisement," although "advertise," "solicit," and other words are also used. Rule 7.2(b) is unique in the Rule 7 series because it addresses conduct—paying for referrals—rather than communication.
C. Treatise Chapters
This chapter of the treatise addresses Rules 7.1, 7.2, 7.4, and 7.5. These Rules principally address communications about lawyers and legal services, whether in websites, advertising (Rule 7.2), designations of fields of practice and certification (Rule 7.4), firm names and letterheads (Rule 7.5), or other communications. Rule 7.3, "Solicitation of Clients," is addressed in the next chapter of this treatise. Effective April 1, 2015, the title of Rule 7.3 was changed from "Direct Contact With Prospective Clients." In the text of Rule 7.3, broad terms like "anyone" and "target of the solicitation" were substituted for "prospective client." The amendments were adopted to avoid confusion with the technical meaning of "prospective client" in Rule 1.18. However, in this treatise, where "prospective client" was previously used, and is not confusing, the term will be retained.
D. No Minnesota Rule 7.6
There is no Minnesota counterpart to ABA Model Rule 7.6, "Political Contributions to Obtain Government Legal Engagements or Appointments by Judges." The Model Rule forbids "pay to play" contributions by lawyers, as a means of obtaining legal work for public clients. In Minnesota, there has not appeared to be a need for this Rule.
E. Primacy of Rule 7.1
Rule 7.1, dealing with materially false and misleading "communication about the lawyer or the lawyer's services," is the cornerstone of the Rule 7 series. Rules 7.2(a) and 7.5(a) expressly refer to Rule 7.1. The unspoken premise of Rule 7.4 is that it protects against misleading statements, about "specialist" designations. Charges of violation of Rules 7.2, 7.4, and 7.5 frequently include a Rule 7.1 charge. With only a little oversimplification, it is said, "So long as lawyer advertising is not false, fraudulent, misleading or deceiving, it passes constitutional muster and the disciplinary code ... ." In re Kotts, 364 N.W.2d 400, 407 (Minn. 1985).
F. Private and Public Communications
The great majority of communications covered by Rules 7.1, 7.2, 7.4, and 7.5 are public. However, these Rules (except, apparently, Rules 7.2(a) and (c), relating to "advertising") also apply to private communications. A lawyer who was suspended for much more serious misconduct also violated Rule 7.1, by falsely claiming to a client that she was a qualified neutral. In re Toberman, 822 N.W.2d 809 (Minn. 2012). Rule 7.1 applies to any "communication about the lawyer or the lawyer's services," regardless of whether the statement is public or private.
G. Related Rules Rules 4.1 and 8.4(c) are closely related to Rule 7.1.
Sometimes the Office of Lawyers Professional Responsibility (OLPR) will charge violations of all three Rules. See, e.g., In re Toberman, 822 N.W.2d 809 (Minn. 2012). Rule 7.2(a) is related to Rules 1.5(e), 5.4(a) and (c), 1.17, and 1.7(a)(2). Rules 5.1, 5.3, 5.5, and 8.4(a) are also closely related to the Rule 7 series.
H. Morals of the Marketplace
Professionals, perhaps especially lawyers, have long been at pains to distinguish professional ethics from the mere "morals of the marketplace." Over a century ago, the ABA told lawyers, "It should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade." ABA Canons of Professional Ethics 12 (1908). From approximately the 1930s to the 1970s disciplinary authorities zealously sought to squelch virtually all advertising and, especially, all solicitation, believing such commercial activities to be inappropriate for professionals generally. After this period, the focus switched primarily to whether lawyer marketing was misleading. However, numerous small, secondary marketing and ethics topics remain.
I. OLPR Advisory Opinions—Common Subjects
An article by the OLPR Director reports, "Common questions for advisory opinion requests about advertising include: whether the words 'Advertising Material' must accompany a particular proposed solicitation letter; whether a particular proposed trade name for a law firm is allowed; are there any limitations on the use of dramatic presentations, the use of actors, or testimonials; what are the current restrictions on calling yourself a specialist; can comparative or superlative adjectives (better, best) ever be used; is it misleading for an attorney to maintain her maiden name as a lawyer if she is taking her husband's name for other purposes." Martin A. Cole, Advertising: The Song That Never Ends, BENCH & B. OF MINN., May/June 2008, at 16, 17.
J. Limited Enforcement, "Gotchas"
Minnesota has been far less inclined than some jurisdictions to assign priority and resources to enforcing the advertising Rules. "Due to the overall civility of lawyer advertising and the general good taste exhibited in ads and websites in Minnesota, we have at least leaned more towards the "hands off" end of the spectrum. But there are limits even here." Martin A. Cole, Revisiting Law Firm Names, BENCH & B. OF MINN., Oct. 2014. As shown by numerous examples below and the following statistics, however, even in Minnesota there are many reported disciplines for Rule 7 series violations that are in the nature of "gotchas"—technical applications of rules that are far from malum in se.
In 2016, there were five admonitions that involved violations of one of the advertising rules, and nine public cases that involved Rule 7.1 violations. About five percent of advisory opinion calls in 2016 involved questions relating to one of the "seven series" rules. Susan Humiston, Congressional Interest in Lawyer Advertising, BENCH & B. OF MINN., April 2017. Perhaps the most frequent type of Rule 7.1 violation warranting public discipline is continuing to hold oneself out as a lawyer during a period of suspension. In re Duchon, File No. A16-1274, 2016 WL 7387624 (Minn., Dec. 15, 2016); In re Van Beek, 887 N.W.2d 31 (Mem) (Minn. 2016).
K. Enforcement Anomalies
Suppose the author's website stated, "William J. Wernz, Top Five Minnesota Ethics Lawyer. Over Thirty Years of Experience. Specializing Exclusively in Legal Ethics. Expect a Higher Level of Service." It appears, from sources cited below, that OLPR would find each of these four sentences violated one or more of the series 7 rules. These positions are called "anomalies" here, because it appears to the author that none of the statements are false, misleading, or in any way harmful to the public or the profession.
II. HISTORY OF REGULATION I—THE OLD DAYS—HENRY DRINKER'S LEGAL ETHICS (1953)
A. Antediluvian Standards
Henry Drinker was the unquestioned dean of American legal ethics for decades spanning the middle of the twentieth century. His treatment of "Advertising and Solicitation" exemplifies official attitudes on these subjects before the 1970s.
B. Leading Subject
In Drinker's LEGAL ETHICS, approximately thirty percent of the text on lawyer ethics was devoted to advertising and solicitation. This allocation reflected the great importance regulators of the era attached to these commercial subjects. The author recalls (though is now unable to cite) an older ethics opinion that light blue professional stationery was unprofessional, because undignified. Many of the opinions of Drinker's era on professional listings, stationery, etc., were notable for their pettiness. The same subjects are now addressed by rules that are notable for their brevity.
C. Fraternal Standards
In Drinker's era, a commercial or competitive attitude toward law practice was thought to betray a certain lack of good manners. "A lawyer who advertises, solicits or steals another's clients is regarded by his brethren at the bar as one with whom it is not pleasant to associate on the terms of cordial intimacy characteristic of the relationship of lawyers to one another." HENRY S. DRINKER, LEGAL ETHICS at 211 n.6 (1953). The author recalls asking a Montana lawyer, in the 1980s, how Montana could purport to enforce obviously unconstitutional restrictions on lawyers' commercial speech. The lawyer said, "If any lawyer challenged our rules, we just wouldn't talk to him."
D. Advertising Harms Society
Drinker's catalog of the evils of advertising included that "extensive advertising would doubtless increase litigation, [and] this has always been considered as against public policy." Id. at 212 (citations omitted). The shadow of the legal standards of the British aristocracy, such as barratry, champerty, and maintenance, hung over American legal ethics for decades.
E. Yesteryear's Lower Standards?
Drinker noted that the profession's strict standards against various commercial practices were, in some cases, of recent vintage. For example, "Judge Sharswood's Professional Ethics, published in 1854, contains nothing whatever about advertising." Id. at 213. Charmingly, Boswell reported that Dr. Johnson would have allowed a lawyer "to insert a...
