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Proposed | Supreme Court of Virginia to review amendments to Rules 7.1-7.5 regarding lawyer advertising
view petition to Supreme Court of Virginia (PDF file)
Pursuant to Part Six: Section IV, Paragraph 10-4 of the Rules of the Supreme Court of Virginia, the Supreme Court of Virginia is expected to consider for approval, disapproval, or modification, amendments to Rules 7.1-7.5 of the Rules of Professional Conduct proposed by the Standing Committee on Legal Ethics and approved by the Council of the Virginia State Bar.
Rules 7.1-7.5
The Standing Committee on Legal Ethics is proposing amendments to Rules 7.1-7.5. Proposed changes to Rules 7.1, 7.3, and 7.5 were revised in response to comments received after the proposal was first published in March 2010. In addition, the Committee presents a new proposal to eliminate Rules 7.2 and 7.4.
Rules 7.1 – 7.5 of the Rules of Professional Conduct regulate lawyer advertising and solicitation. Overall, the Committee’s proposed amendments make these rules more general in their application by removing the specific examples of lawyer advertising statements or claims from the body of the rules to the comment section. Specifically, the proposed amendments to Rule 7.1 would delete the terms “fraudulent” and “deceptive.” If a lawyer’s advertising is “fraudulent” or “deceptive” it would therefore be “false” or “misleading.” The Committee believes that statements in lawyer advertising that are “false” or “misleading” violate Rule 7.1 regardless of any intent by the lawyer to deceive the public or defraud a consumer.
The Committee’s new proposal to delete Rule 7.2 is based on the conclusion that the Rule is largely redundant of Rules 7.1 and 7.3. Relevant parts of Rule 7.2 regarding lawyer advertising are incorporated within Rule 7.1 as “Communications” covers all lawyer advertising; relevant parts of Rule 7.2 regarding paying others to recommend a lawyer have been incorporated within Rule 7.3.
The proposed amendments to Rule 7.3 would both broaden and narrow the scope of the prohibition against in-person solicitation. First, it would broaden the scope of the prohibition by applying the rule to cover all types of matters, not only personal injury and wrongful death cases. As proposed Comment [2] explains, “A person in need of legal services for a divorce, bankruptcy, or criminal defense may be just as overwhelmed and vulnerable to suggestion as a person in need of legal services in cases involving personal injury or wrongful death.” Second, in response to the comments regarding this rule, the Committee’s revised proposal would limit the scope of the prohibition against in person solicitation to solicitations involving harassment, coercion, duress, compulsion, intimidation, threats, or unwarranted promises of benefits. As proposed Comment [3] indicates, the propriety of any communication, including in person solicitation, “will be judged by the totality of the circumstances under which it is made, including the potential client’s sophistication and physical, emotional, and mental state, the nature and characterization of the legal matter, the parties’ previous relationship, the lawyer’s conduct, and the words spoken.”
Rule 7.3 maintains the requirement that targeted advertisements to a potential client known to be in need of particular legal services be labeled “ADVERTISING MATERIAL,” but clarifies and expands the exceptions to that requirement, including a new subsection which provides that a communication from a lawyer to a recipient who had prior contact with the lawyer is exempt from the labeling requirement.
The Committee’s proposal to delete Rule 7.4 in its entirety is based upon the Committee’s conclusion that any claim or statement of specialization should be measured by the “false” or “misleading” standard used in Rule 7.1 and that a specific rule for a particular type of statement or claim is both unnecessary and redundant. If a lawyer communicates a specialty certification, the lawyer’s communication will be evaluated under Rule 7.1’s requirement that any advertising regarding a lawyer’s specialty certification cannot be misleading and must be truthful. The Committee makes this point in Rule 7.1, new Comment [7].
The proposed amendments to Rule 7.5 would add a new Comment [3] clarifying that lawyers should practice using the official name under which the lawyer is licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia.
The proposed amendment may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed amendment can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org/pro-guidelines/index.php/rule_changes/.
Updated: November 9, 2011