How the Rules Related To Advertising Will Change: What Minnesota Lawyers Need to Know
As of September 1, 2022, the Minnesota Rules of Professional Conduct have been streamlined and simplified in support of lawyers who want to do advertising. But take note: Even the word “Advertising” has been eliminated from the title of the Rule which is now referred to as “Rule 7.2 Communications Concerning a Lawyer’s Services: Specific Rules.” One positive change is that lawyers no longer need to include the word “Advertising” at the top of targeted communications.
As many of you know, I spent many years as both a 4th District Ethics Investigator for complaints in Hennepin County and served on the Lawyers Board of Professional Responsibility (co-chairing the board for a year) for over six years.
The purpose of this blog is to provide the highlights of the changes to the Advertising Rules, and to make recommendations on opportunities and freedoms you now have in marketing your practice. I will discuss what remains the same, but also what has changed, reviewing in order all the Rule 7 changes.
Rule 7.1: Communications Concerning a Lawyer’s Services
One thing has not changed, nor should it. Lawyers are prohibited from making statements that are false or misleading. In other words, tell the truth. Don’t overstate your qualifications, and don’t state you have practiced in areas or matters you haven’t. Complying with this Rule also requires that you not omit facts that would confuse or mislead a prospective client or referral source. Rule 7.1 also encapsulates today’s key marketing tools like your website, LinkedIn profile, and e-communications you send to clients. Let’s say you want to get into a particular practice area, like family law or estate planning. You cannot promote these services until you have the demonstrated experience to deliver services in these areas. You can’t list areas in which you don’t practice but would like to on any of your marketing whether electronic or paper based.
Rule 7.2: FKA Advertising, now called Communications Concerning a Lawyer’s Services: Specific Rules
This Rule builds on the foundational elements of Rule 7.1 stressing the need to be truthful and not to mislead people about your perceived v. actual experience. This Rule continues to prohibit paying for referrals (except in specific situations governed in MRPC Rule 1.5(e). There is also a higher standard for “Qualified” referral services. Any referral network or service must be consumer-focused, provide unbiased referrals to lawyers with appropriate experience and subject matter mastery, and must offer a complaint procedure or malpractice insurance requirements.
You Can Now Say Thank You With a Gift
The new Rules allow lawyers to send thank you gifts that convey an expression of appreciation to referral sources. The gifts must be nominal – like a gift card to Starbucks, or their favorite restaurant. Yet the gift must not convey any type of payment or compensation for making the referral.
Another part of Rule 7.2 that has been expanded is that in all communications the lawyer needs to continue to provide his or her name (the lawyer responsible for the communication), and must now include contact information (phone number, email address, website address for example).
Rule 7.3 Solicitation of Clients
Please review Rule 7.3(a) as it now includes the “official” definition of the term “solicitation.” One highlight is that the Rule defines and narrows the solicitation to “live person-to-person contact.” The exception is if the lawyer is contacted directly by the client or a personal who has a close family, or personal connection or has a prior business or professional relationship with the lawyer or the law firm. Take some time to read the new Rule and you will see that generally the people with whom lawyers can meet to solicit business has expanded. As always, a lawyer managing others on his or her team must make reasonable efforts to ensure all employees or vendors are abiding by the ethics Rules. In addition, it is ethically prohibited for you to, for example, hire a salesperson to directly solicit new clients by visiting hospitals, nursing homes, or other places prospective client are vulnerable.
The Rule changes broaden and expand what lawyers can do to market their practices. Not having to put “Advertising Material” at the top of everything you send to someone who is not a direct contact, client, or referral source is refreshing. It automatically increases the credibility of your message by being able to omit this intrusive headline. There are many other “Rules Related to Marketing” that you should be aware of – because you have total control over complying with them. Those Rules include:
- Rule 1.1 Competence
- Rule 1.2 Scope of Representation
- Rule 1.3 Diligence
- Rule 1.4 Communication
- Rule 1.16 Declining or Terminating Representation
- Rule 2.1 Advisor
- Rule 3.6 Trial Publicity
- Rule 6.1 Voluntary Pro Bono Publico Service
- Rule 6.3 Membership in Legal Services Organizations