On Jan. 8, the Washington Supreme Court approved significant amendments to the RPCs governing both lawyer advertising and in-person solicitation. The Supreme Court’s action culminates a lengthy review of the lawyer marketing rules by both the WSBA and the court itself and parallels similar developments nationally. The Supreme Court’s order (No. 25700-A-1333) approving the amendments and including the specific text should be available shortly in the “rules” section of the Washington courts’ website. Both the changes and the history behind the amendments are discussed in detail in my March 2019 Ethics & the Law column, “Looking Forward: Proposed Amendments to Lawyer Marketing Rules Under Review.”
In brief, the amendments reduce most marketing regulation to two central concepts reflecting the underlying constitutional limits on lawyer marketing.
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.
Taken together, the amendments considerably simplify the lawyer marketing regulations and, by reducing them to their constitutional core, should provide a relatively stable legal framework moving forward to accommodate continuing technological and economic forces shaping the legal marketplace.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
