In a Notice of Proposed Rulemaking published in the Pennsylvania Bulletin on February 20, 2021 (51 Pa.B. 891), the Disciplinary Board proposed extensive amendments to Rules 7.1, 7.2, 7.3, 7.4, 7.5 and 7.7 of the Pennsylvania Rules of Professional Conduct, addressing communications about legal services, advertising, solicitation, fields of practice, firm names, and other matters. The Board is seeking public comment which must be submitted by May 21, 2021.
The proposed changes are designed to bring the Pennsylvania rules into conformity with the ABA Model Rules of Professional Conduct, and seek to streamline and update the requirements to adapt to changes that have taken place in the profession during the digital age. Spanning 14 pages in the Pennsylvania Bulletin, the new language is too extensive to set forth in full in this newsletter.
These are highlights of the proposed amendments:
Only the comments to this Rule are changed.
Comment 2 is amended to add, “A truthful statement is also misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer’s communication requires that person to take further action when, in fact, no action is required.”
Comment 3 will identify “an unsubstantiated claim about a lawyer’s or law firm’s services or fees” as misleading.
Comment 4 adds a cross-reference to Rule 8.4(d), regarding dishonesty or misrepresentation.
Comment 5, regarding firm names, is extensively rewritten to identify several situations in which a firm name would be considered misleading.
Comment 6 requires a law firm with offices in more than one jurisdiction to indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where each office is located.
Comment 7 prohibits lawyers who are not associated in a firm from holding themselves out as one.
Comment 8 labels as misleading the use of the name of a lawyer who holds public office in the name of the firm during any period when the lawyer is not actively practicing.
Rule 7.2(a) is amended to provide that a lawyer may communicate information regarding the lawyer’s services through any media.
Current Rule 7.2(b), requiring that a copy of any advertisement must be kept for two years, is eliminated.
New Rule 7.2(b) [currently (c)] is expanded to provide that a lawyer shall not compensate or promise anything of value to a person for recommending the lawyer’s services. The current rule only reads “give” anything of value.
New Rule 7.2(c) sets forth at length the circumstances under which lawyers may state or imply that they specialize in certain fields of law.
New Rule 7.2(d) provides that the Supreme Court of Pennsylvania may designate organizations which can certify lawyers.
Amended Rule 7.2(f) eliminates a prohibition on nonlawyers portraying lawyers in advertising, but retains language prohibiting use of a fictitious name to refer to lawyers not associated together in a law firm.
Current Rule 7.2(g), prohibiting portrayal of a client by a non-client or the re-enactment of any events, and requiring disclosure that a portrayal is a dramatization, will be eliminated.
Current Rule 7.2(k) [renamed 7.2(j)] will be amended to eliminate a requirement that a firm advertising that its practice is limited to certain kinds of cases must disclose if it does not take such cases from intake through trial.
New Rule 7.2(k) requires that any communication made must include the name and contact information of at least one lawyer or law firm responsible for the content.
The Comments to Rule 7.2 are extensively amended as well.
Current Comments 1, 3, 4, and 5 are eliminated.
A new Comment 6 requires a lawyer who accepts assignments or referrals from a legal service plan or a lawyer referral service to act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations.
New Comments 7 through 9 discuss at length circumstances in which a lawyer can discuss certifications or concentrations in the practice of law.
A new Rule 7.3(a) defines solicitation as “a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.”
Rule 7.3(b) [formerly (a)] would be amended to prohibit solicitations “by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain,” subject to certain exceptions.
A new Rule 7.3(e) allows communications authorized by law or ordered by a court or other tribunal.
A new Rule 7.3(f) allows lawyers to participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions.
Comment 2 to Rule 7.3 defines live person-to-person contact as “in-person, face-to-face, live telephone, and other real time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection.” Chat rooms, text messages, or other written communications that recipients may easily disregard are excluded from the definition. It adds, “A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal service,” noting that when a trained advocate presses for an immediate response, overreaching may occur.
Comment 5 adds language providing examples of clients for whom overreaching is less likely to occur.
Comment 6 warns that “Live, person-to-person contact of individuals who may be especially vulnerable to coercion or duress is ordinarily not appropriate, for example, the elderly, those whose first language is not English, or the disabled.”
New Comment 9 states that communications authorized by law or ordered by a court or tribunal include notices to potential members of a class in class action litigation.
New Comment 10 amplifies the provision of Rule 7.3(f) that a lawyer accepting clients through a legal services plan must not have an ownership or control interest in that plan.
These rules are to be revoked, as the subject matter they cover would be addressed elsewhere in the Rules.
Comments may be submitted until May 21, 2021 to:
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625
Fax: (717) 231-3381