Earlier this month, the Washington Supreme Court approved amendments to the RPCs permitting in-person solicitation and use of the designation of “specialist” in lawyer advertising. Below are the highlights, courtesy of NW Sidebar.
RPC 7.1, which requires truthfulness in all lawyer marketing communications regardless of the form, remains. The comments to RPC 7.1, in turn, are expanded to address advertising generally, specialization and law firm names that formerly resided in now-eliminated rules: respectively, former RPCs 7.2, 7.4 and 7.5. Of note in an age when most lawyers focus their practices narrowly, Comment 8 to RPC 7.1 now permits lawyers to specifically state that they are “specialists”—as long as that is true.
RPC 7.3, which governs in-person solicitation, is also reduced to its constitutional core and now generally permits in-person solicitation unless the contact is misleading, the lawyer knows or reasonably should know that the physical or mental state of the person contacted impairs their judgment on employing legal counsel, or the solicitation amounts to harassment (including instances where the target informed the lawyer they did not wish to be contacted).
The package of amendments retains the general prohibition on paying for referrals outright but moves that provision to RPC 7.3(b). An accompanying technical amendment to RPC 5.5 makes clear that law firms can continue to practice across state lines.
Will Oregon follow suit? With COVID-19, it isn’t likely any Washington lawyers will take immediate advantage of the new leniency in solicitation. More pertinent for now is the ability to call yourself a specialist if you truly are.
On December 16, 2020 the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 495. Here is the synopsis:
Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.
The opinion does not address confidentiality, use of technology, or other issues that may arise in remote working situations. Read the full opinion here.
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