Standing Committee on Lawyer Advertising and Solicitation

Alan S. Anderson, chair

Upon the recommendation of the Virginia State Bar ethics counsel and with the approval of the Standing Committee on Lawyer Advertising and Solicitation (SCOLAS) and the Standing Committee on Legal Ethics, the Virginia State Bar proposed at the June 18, 2009, council meeting that SCOLAS be discontinued, or “sunsetted.” The proposal was approved by the council by a vote of 58-1 (4 abstentions) on June 18, 2009.

VSB Staff undertook an extensive evaluation of SCOLAS and its work over the fifteen years since its inception and concluded that the work of SCOLAS had waned. Staff believed the functions of SCOLAS could efficiently and, more importantly, economically be handled by staff and the Ethics Committee. Much of SCOLAS’s work involved the monitoring of lawyer advertising, which was done primarily by staff through prescreening and monitoring functions. Only eleven complaints alleging improper advertising were filed with the VSB Professional Regulation Department from 2002 to 2008. Additionally, since its creation in 1991, SCOLAS issued fewer than twenty advisory opinions and had to generate only minimal rule revisions.

A primary responsibility of SCOLAS was to educate and advise lawyers about their ethical responsibility in lawyer advertising and solicitation. That function included drafting advisory opinions and education through continuing legal education programs, as well as responses to advertising inquiries. That work will continue to be incorporated into the staff’s work and CLE programs throughout the state.

Ethics counsel had always played a primary role in SCOLAS’s efforts. In order to timely address lawyer advertising issues, ethics counsel routinely monitored and reviewed lawyer advertising and identified noncompliance issues. Non-compliance letters were immediately issued alerting lawyers to problematic advertisements. Additionally, when requested, ethics counsel reviewed and advised lawyers on their advertisements on a timely basis in advance of dissemination. Much of that was accomplished during the period between SCOLAS’s bimonthly meetings.

While the sunsetting of SCOLAS is pending with the Supreme Court of Virginia, the committee’s meetings have been suspended since the beginning of 2009, and ethics staff and the Ethics Committee have continued their work of providing SCOLAS’s functions and documenting their continued progress. Lawyers continue to have their ads reviewed, and persons who have a complaint about a law firm's advertisements continue to voice their concerns by directing them to the Ethics Committee. Public protection from misleading advertising continues to be provided by ethics counsel and the Ethics Committee.

Ethics staff increased the number of requests about questionable advertisements, which led to an increased number of noncompliance letters. Compared to the 70 noncompliance letters sent in the entire fiscal year ended 2008, the bar sent 102 noncompliance letters in 2009, of which 97 were sent between January 1, 2009, and June 1, 2009. Ethics counsel only sent two issues to the Ethics Committee for review. For all other issues, Ethics Counsel sent noncompliance letters and all the recipients agreed to make the appropriate changes to their advertising. No matters have been referred for discipline.

SCOLAS met twice during the fiscal year ended 2009 before the meetings were suspended. At its meeting on September 10, 2008, the committee again considered and approved an amendment to Rules of Professional Conduct 7.4(d), which currently allows a lawyer to communicate that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication contains a disclaimer indicating there is no procedure in the Commonwealth of Virginia for approving certifying organizations. The proposed amendment would allow a lawyer to advertise a specialty certification without the need for a disclaimer if the certification was granted by an organization that is currently accredited by the American Bar Association. The proposed amendment would continue to require a disclaimer when advertising a certification that has been granted by an organization that is not accredited by the ABA. At its February 2009 meeting, the VSB Council approved the proposed amendment, which is now pending consideration by the Supreme Court of Virginia.

I would like to thank the committee members Vice Chair Roscoe B. Stephenson III, Elizabeth M. Allen, Richard O. Bolger, Jennifer A. Crane, Alison P. Landry, Robert C. Lowerre, Daniel L. Rosenthal, Susan R. Salen, David R. Selig, Christopher L. Spinelli, and C. James Williams III for their hard work and dedication to the mission of the committee during this past year, as well as bar staff for their unflagging and cheerful support of our efforts.

Updated: Aug 27, 2009