Testimony of NJSBA President Thomas H. Prol
American Bar Association Standing Committee on Ethics and Professional Responsibility
Proposed Amendments to Model RPCs 7.1-7.5
February 3, 2017
ABA 2017 Mid-Year Meeting
I am Thomas H. Prol, president of the New Jersey State Bar Association, the largest organization of judges, lawyers and legal professionals in the state. I am also a member of the American Bar Association’s House of Delegates and previously served as a member of the Board of Governors for the ABA’s Law Student Division.
My remarks today come against the backdrop of the deep appreciation I have for the great amount of time and work you each have put into this committee. I recognize that you are often paid in complaints for your efforts so it is important for me to express that I appreciate what you do and understand the great time commitment you have made and continue to make here.
I appear here today on behalf of the NJSBA’s 18,200 members to adamantly oppose these proposed changes to the Rules of Professional Conduct.
Our fundamental concern is that they undermine the ethical delivery of legal services, and leave the public largely unprotected.
To be certain, the RPCs governing lawyer advertising and communication could stand to be updated to reflect the changes to technology and information delivery.
However, these proposals erode the carefully crafted and much needed protection that the current rules provide to the public.
The NJSBA has concerns about the proposals, but will highlight issues with the two most rife with danger:
The amendments to RPC 7.1 would permit solicitation of clients through “organized information campaigns” that would include television, internet and other forms of electronic communications about a lawyer’s services, with few limitations regarding the use of false or misleading information.
These means of communication offer an important tool when trying to reach people of low- and moderate-means in need of legal services. However it is exactly these sometimes unsophisticated consumers who need the protections the current rules provide to ensure they do not fall prey to overreaching and overly zealous advertising efforts.
These protections are not traditions.
These safeguards are not curious anachronisms.
We believe limits on a lawyer’s active quest for clients are not only appropriate, but are vital as the current rules represent well-thought, balanced and needed protections for an unwary public.
They should not be reduced in the way this proposal would allow.
The amendments would also permit attorneys to communicate specialties, regardless of whether that person has been certified in that area of expertise or not. Without more specific standards, this could result in individuals with vastly differing levels of experience claiming to be specialists. In this area, I encourage you to look at the program we have in New Jersey which should serve as a model to the nation.
Now, I comment on Amendments to RPC 7.2 – which are vague to the point of being dangerous.
The proposal would expand those individuals to whom in-person, face-to-face, or telephone solicitations could be made to include “sophisticated users of legal services.” It is first and foremost, unclear who these sophisticated users are. It also includes problematic language that would allow repeated unsolicited communications, which will leave a negative imprint on the profession and does nothing to advance an unmet need for information or services.
As such, this proposal is an invitation to harass under the guise of help, and our profession’s respect and reputation will suffer.
The amendments would also specifically permit fees to pay the cost of advertising or communications through online group advertising services. The proposals would also permit payments for marketing and client development services, so long as those providing the services do not direct or regulate the attorney’s judgment.
I cannot express our objection more strongly, as well as our grave concerns about how these proposals will injure the practice of law.
These proposed changes clearly and unabashedly open the door to allowing fee sharing, and the payment of referral fees to non-lawyers or non-lawyer companies – including those companies that may be in violation of the RPCs.
Moreover, in attempting to update the advertising rules, these proposals, if adopted, will be a slippery slope toward the end of ethical rules on fee sharing and referral fees.
Several states have issued ethics opinions that say advertising arrangements, such as those contemplated under the proposal, aren’t permitted. The ethics and advertising rules should not be changed to refute those opinions under the guise of updating the rules or providing legal services to the underserved.
The NJSBA has spoken out vigorously against proposals in recent years that seek to expand the types of permissible fee sharing and referral arrangements currently covered by the ethics rules. We view this proposal in that same vein, and urge that, if changing those fundamental pillars of our ethics rules is the real goal, those changes should be presented and discussed in a straightforward, forthright manner, so they can be properly considered and vetted by all of the stakeholders.
Likewise, if improving the delivery of legal services to low and moderate income individuals is the real goal, those discussions should be broad in scope, with any proposed rule changes offered in a comprehensive, not piecemeal manner.
As I stated at the beginning of my remarks, the RPCs governing lawyer advertising and communication could certainly stand to be updated to reflect changes to technology and information delivery, but this proposal goes too far and carries with it far-reaching ethical implications.
For these reasons, the NJSBA respectfully urges you to reject the proposed changes.