Saturday, October 10, 2020

Colorado Attorney Advertising Rules Updated

I've been fascinated with attorney ethics advertising rules since law school.  So much so that, in lieu of taking a final exam in Professional Responsibility, my friend John Gray and I opted to write and record a series of unethical attorney advertising radio commercials which systematically violated every rule in the then-effective ABA Code of Professional Responsibility, together with a footnoted transcript demonstrating that we had busted them all.  I still regularly quote a line from one of John's ads: "We give you cashmere service at a polyester price!"

Ah, Sweet Youth!  Where hast thou fled?

It was a lot easier to write unethical advertisements under the old CPR.  The Code of Professional Responsibility was essentially a laundry list of "Thou Shalt Nots."  The rules could have been shortened to "Don't Touch That" and saved a lot of ink.  Other than allowing inclusion in a "lawyer's directory," and sanctioning public speaking engagements on legal topics, advertising was verboten in exquisite and minute detail.  This provided a veritable road map of rules for John and me to bust.

The advertising rules under the ABA's Rules of Professional Conduct were, at least when first adopted in 1983, comparatively a model of simplicity.  I frequently summarize them as "don't lie, don't tell half-truths, and don't create unjustified expectations," with a few logical corollaries.  Short, sweet, easy to remember and, at least in theory, easy to follow.  Nine years later, in May 1992, Colorado adopted the ABA Model Rules and, at least for a year or two, simplicity reigned.  

Then the "7 Series" -- Colo. RPC 7.1 et. seq. where the advertising rules are located -- began to suffer "code creep."  From my perspective this was largely the result of lawyers who chose not to take advantage of Bates vs. State of Arizona (which stuck down the CPR's prohibition on attorney advertising as an unconstitutional restriction of free speech) -- in Colorado primarily 17th Street commercial business firms to whom advertising was an unseemly anathema -- complaining about attorneys who took full advantage of Bates -- specifically personal injury lawyers, who took to attorney advertising with all the restraint of binge eater at an all-you-can-eat buffet.  One by one provisions were added until the simple elegance of the Model Rules became an unrecognizable mess.

Al Gore's invention of the Internet made it an even bigger mess.  Was chat "in-person" solicitation?  Was SPAM solicitation or advertising?  Was an attorney required to include the word "ADVERTISING" in 10 point type in the subject line of e-mail marketing (even though this is an impossibility in an e-mail subject line)?  What about Tweets?  The regulatory baggage continued to pile up on the simple original framework of the 7 Series until, foreseeably and inevitably, it collapsed under its own weight.

Picking through the smoldering wreckage, the ABA repealed and re-enacted the 7 Series, reverting to a short and simple structure.  On 10 September the Colorado Supreme Court followed suit, adopting the ABA's changes effective immediately.  Colo. RPC 7.1-7.5 were repealed and replaced with only three rules, 7.1-7.3; the comments now carry most of the detailed guidance was had been previously glommed onto the rules.  You can find new CPR 7.1-7.3 here.

Not all of the embellishments previously added to the former Colorado 7 Series have been relegated to the Museum of Ethics Antiquities.  For example the cross-reference to §13-93-111, C.R.S. survives in Colo. RPC 7.3(d).  But considering the nearly 28 years of accumulated detritus, like the proverbial 1,000 lawyers at the bottom of the ocean, it's a commendable start.



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