December 04, 2008
VSB Council to Review a Proposed Amendment to Rule 7.4(d) of the Rules of Professional Conduct
Pursuant to Part Six: Section IV, Paragraph 10(c) of the Rules of the Supreme Court of Virginia, the Virginia State Bar Council, at its meeting on February 28, 2009, in Richmond, Virginia, is expected to consider for approval, disapproval, or modification, a proposed amendment to Rule 7.4(d) of the Rules of Professional Conduct.
The Standing Committee on Lawyer Advertising and Solicitation (SCOLAS) proposes an amendment to Rule 7.4(d) that currently allows a lawyer to communicate the fact 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 (ABA). 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 because such organizations lack the rigorous requirements set forth in the ABA accreditation process.
The intent of SCOLAS in proposing the rule amendment is to provide an objective standard by which a lawyer’s claim that he or she is certified as a specialist may be evaluated. Permitting a lawyer to advertise a specialty certification if bestowed by an ABA accredited organization accomplishes this end based upon the objective criteria employed in the certification process. SCOLAS believes that the stringent requirements imposed upon a certifying organization seeking ABA accreditation, as well as the public’s ability to readily access information about a certifying organization eliminates the necessity for any disclaimer. Allowing lawyers to advertise a specialty certification which has been conferred on the basis of objective rather than subjective criteria protects the public by providing truthful, reliable information to the consumer of legal services. This is consistent with the trend in lawyer advertising as evidenced by the decisions in prior First Amendment cases decided by the U.S. Supreme Court which permit unrestricted lawyer advertising as long as it is truthful and not inherently misleading.1
Inspection and Comment
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. Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed amendment by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than February 16, 2009.
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- For example, see Mason v. Florida Bar, 208 F.3d 952 (2000), in which the Florida Bar challenged as misleading or potentially misleading an attorney’s yellow pages advertisement claiming that the attorney was “AV Rated, the Highest Rating Martindale-Hubbell National Law Directory. The Supreme Court held that the Florida Bar failed to present evidence “to point to any harm that is potentially real, not purely hypothetical…” and concluded that the restriction impermissibly curtailed non-misleading commercial speech.