The rules governing legal advertising for Texas attorneys and law firms are scheduled for some significant changes in the coming months. This blog post provides a summary of the revised advertising rules to help legal professionals prepare.
The proposed revisions to the Texas Disciplinary Rules of Professional Conduct (TDRPC) were requested by the State Bar of Texas Board of Directors. They were highlighted in the December issue of the Texas Bar Journal and discussed during a public hearing held earlier this month in Austin.
The Committee on Disciplinary Rules and Referenda (CDRR) has announced that it will be accepting comments on the new rules through March 1 before a final vote scheduled for either the March 6 or April 18 CDRR meeting.
While many of the proposed changes will not impact every lawyer or firm, there are several areas that are sure to alter the way a lot of Texas counsel market their services.
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Proposed Ad Rules Changes
Following is a breakdown of the TDRPC rules governing lawyer advertising that are up for revision and the substantive differences compared to the status quo:
Rule 7.01 – Currently titled “Firm Names and Letterhead,” this rule would be renamed “Communications Concerning a Lawyer’s Services.” This revision is likely to generate the most conversation among lawyers and firms because it eliminates the prohibition against practicing under a trade name.
If passed, this change means we can expect to see more firms trying to differentiate themselves using trade names that have been disallowed for years. Think “Dallas Car Wreck Law Firm” or “Houston Intellectual Property Lawyers.”
Since the new proposed rule requires that trade names and other communications “be truthful and non-deceptive,” one would presume that would prevent a firm of trademark lawyers from operating as the “Motorcycle Crash Law Firm,” but time will tell.
Verdict Amounts and Specialization
Rule 7.02 – Currently titled “Communications Concerning a Lawyer’s Services,” this rule would be renamed “Communications Disseminated by Public Media.” Under this proposed revision, attorneys and firms will no longer be required to provide a penny-by-penny accounting of how the proceeds from a verdict, judgment or settlement are distributed. Currently, firms that advertise the gross amount of a court award or settlement must also disclose the attorneys’ fees and litigation expenses that are withheld from the amount received by the client.
Another proposed change for Rule 7.02 involves the use of the term “specialist” in public advertisements, which the current rules prohibit except for those who have earned board certification from the Texas Board of Legal Specialization or those who are admitted to practice before the U.S. Patent and Trademark Office. The proposed changes would eliminate that requirement and presumably allow any attorney to claim that they are a specialist in whatever area they choose.
This “specialist” revision already has drawn opposition from more than one board certified lawyer during the CDRR public hearing earlier this month. Based on how CDRR members responded to those comments during the hearing, expect to see additional changes that will help differentiate between attorneys who are certified by the Texas Board of Legal Specialization and those who are not.
Rule 7.03 – Currently titled “Prohibited Solicitations and Payments,” this rule would be renamed “Solicitation of Paid Professional Employment.” These proposed changes essentially make it clearer what types of communications can be sent to a non-client about potential employment and who can communicate with non-clients.
In addition to prohibitions against using coercion, duress, etc., the new rule also would prevent such communications from resembling legal pleadings or other legal documents.
It would also require the communication to be labeled “ADVERTISEMENT” unless it is sent to a lawyer; someone who has a family, close personal, or prior business or professional relationship with the advertising lawyer; or a person who is known by the lawyer to be an experienced user of legal services in business matters.
Submissions to Ad Review
Rule 7.04 – Currently titled “Advertisements in the Public Media,” this rule would be renamed “Filing Requirements for Public Advertisements and Written, Recorded, Electronic, or Other Digital Solicitations.”
This change essentially would replace Rule 7.07 by including the requirements for which advertisements must be filed with the State Bar Ad Review Committee. Those requirements remain largely the same as in the current rules and include advertisements, direct solicitations and social media communications “for the purpose of obtaining professional employment.”
The new rule also would eliminate the requirement that an attorney be admitted to practice before the U.S. Patent and Trademark Office before calling themselves a “specialist” in patent, trademark or intellectual property law. As noted above, expect this proposed new rule to undergo additional revisions before the final vote.
Rule 7.05 – Currently titled “Prohibited Written, Electronic, or Digital Solicitations,” this rule would be renamed “Communications Exempt from Filing Requirements.” Like a lot of the proposed changes, this revision eliminates a lot of the language from the existing rules while making it clearer what is permitted as opposed to what is prohibited.
Provided that it conforms with Rule 7.01, a communication under new Rule 7.05 will not be subject to the ad rules if it includes part or all of the following:
- Name, office address, phone number, office hours, etc.
- Areas of practice
- Dates when admitted to the State Bar, federal courts and bar associations
- Educational background
- Technical and professional licenses
- Foreign language abilities
- Areas of board certification by the Texas Board of Legal Specialization
- Membership in prepaid or group legal service plans
- Whether credit cards are accepted
- Fee schedule
- Links to other websites
- Charity sponsorships
The proposed Rule 7.05 also would exempt communications that include only that a lawyer contributed to a charitable, community, public interest program, activity, or event or those that list solely the name of the lawyer and/or their firm and office address in connection with a sponsorship.
Also exempt would be:
- Legal listings
- Announcement/tombstone announcements pertaining to new firm affiliations, new offices, etc.
- Newsletters sent to existing or former clients; other lawyers or professionals; or members of nonprofit organizations under certain conditions.
Overall, the requested revisions seem to streamline the rules and make them easier to understand and follow, although it will be difficult to determine the true impact until after the final language is approved and the rules are enacted. In the meantime, we plan on keeping a close eye on how things are going so we can provide additional updates as the process moves along.
Bruce Vincent is a writer and editor who has more than 20 years of experience helping lawyers and firms abide by legal advertising regulations. He was the only reporter to provide gavel-to-gavel coverage of the federal trial that resulted in the Texas rules for lawyer advertising. Contact him direct at firstname.lastname@example.org if you need help making sure you stay within the rules.