The latest proposed re-do of the Texas attorney advertising rules (the Ad Rules) has just been released by the Committee on Disciplinary Rules and Referenda (CDRR) and, surprisingly, they make a lawyer’s subjective desire for pecuniary gain the sine qua non of the Ad Rules. If you don’t read any further at least please view the proposed rules, comment, and learn about public hearings on them here.
This new subjective standard is a problem.
It has long been settled that, when it comes to attorney advertising (aka commercial speech), what matters is not the speaker’s subjective intent but rather whether the actual words used mislead the public, tarnish the image of the profession or otherwise harm some legitimate value the bar is allowed to protect.
You will recall that the CDRR released its first version of proposed changes to the Ad Rules in November, 2018. That version allowed Texas lawyers to use trade names. Much objection from the Bar followed. Those rules were scrapped, and, as predicted, the prohibition against trade names has been revived in this latest version–but with a twist. It now states:
Rule 7.07: A lawyer substantially motivated by pecuniary gain shall not practice under a trade name.
Every lawyer works for pecuniary gain except when working on a purely pro bono basis. If we look honestly at what motivates lawyers then all lawyers in private practice are forbidden to use trade names because the only reason to use a trade name is get more trade; that is, for pecuniary gain.
But wait . . . there’s more.
The newly revised Ad Rules are riddled with this phrase–substantially motivated by pecuniary gain appears 17 times in the latest version–and there is no guidance at all as to how to objectively determine whether a communication or advertisement qualifies as such.∗
This phrase is even being used to define the kind of communications to which the Ad Rules apply in the first place. See proposed Rule 7.01(b)(1).
Invitiation to ligitation? Probably. Invitation to confusion? Absolutely.
Back to Bates.
Although a lot of work went into the new advertising rules it was work based on a flawed notion of what principle should guide the Bar’s regulation of advertising. Instead of trying to look into the heart and mind of the lawyer, which is an enterprise fraught with the likelihood of error, the rules need to look at the effect of advertising and trade names on the public. Bates v State Bar of Arizona , 433 US 350 (1977), struck down rules that forbade truthful advertising and specifically permitted restrictions on advertising that is false or misleading. Our advertising rules only need to restrict false and misleading advertising–something that is recognizable by the actual content of the message and not the motivation behind it. The profit motive will remain a legitimate concern in regulations forbidding direct solicitation of individual clients because the profit motive creates an unacceptable risk of other kinds of misconduct∗∗, but for communications aimed at the general public it is the actual words, not the motive that matters.
Back to trade names.
By way of example (and this analysis should be done on each rule that includes the phrase substantially motivated by pecuniary gain), if there is a problem with trade names it must be that they are misleading because they imply a specialization or expertise that does not exist. “Worlds Greatest Law Firm” would be a pretty obvious example of this. Nothing about the intent behind the name matters or is relevant to determining whether it is misleading.
The proposed addition of the attorney’s subjective intent renders the prohibition against trade names meaningless because it allows for only two possibilities. It either:
(1) applies to every lawyer (if that is the intention–it simply needs to say “no trade names”)
(2) every lawyer can use a trade name as long as they can explain that they were not “substantially motivated by pecuniary gain” in so doing. To put it mildly–it is a standard that any decent lawyer can drive a truck through.∗∗∗
We need a standard that is objective and consistent with the Courts’ rulings on attorney advertising. The new proposed Ad Rules are neither.
∗ There are no comments to the proposed Ad Rules. Comments to the rules are necessary and typically used to define, explain or interpret what is meant by the language used in the rules. Moreover, the only similar language we found in any current Texas statute is the phrase “substantially motivated by sincere religious belief” in the Texas Religious Freedom Restoration Act. The word “substantially” itself appears thousands of times in Texas statutes without, however, ever being defined. Thus, the proposed rule hangs on a never before used phrase whose most important word, “substantially,” is not defined.
∗∗This is made clear in the comments to existing rule 7.03 (covering prohibited solicitations), which largely follows the ABA Model Rule on direct solicitation.
∗∗∗For example, the lawyers practicing at “The ADA Firm” are going to say that they are substantially motivated not by making money but by protecting the public and educating them about important rights under the American with Disabilities Act (ADA). Copy and paste a similar argument for every firm operating under such a trade name.