Changes to Lawyer Advertising Rules Approved by the Supreme Court of Virginia Effective July 1, 2013

by James M. McCauley, Ethics Counsel

Effective July 1, 2013, the Supreme Court of Virginia has approved amendments to Rules 7.1-7.5 of the Rules of Professional Conduct. The amendments move specific examples of lawyer advertising statements or claims from the body of rules to the comment sections. They also remove unnecessary and redundant language.
Here is how the approved amendments change the current rules.

• The terms “fraudulent” and “deceptive” are removed from Rule 7.1. A communication that is “false or misleading” violates the rule.
• The disclaimer required for advertising specific or cumulative case results has been removed from Rule 7.2—which has been eliminated in its entirety—and is now Rule 7.1(b). The disclaimer shall:
  • (i) put the case results in a context that is not misleading; (ii) state that case results depend upon a variety of factors unique to each case; and (iii) further state that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.
  • The disclaimer shall precede the communication of the case results.
  • When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.
• Other than specific or cumulative case results, examples of statements or claims considered to be “false or misleading” have been taken out of Rule 7.1 and placed in the comments. Former subparagraphs (1)-(4) were deleted.
• Comment [1] to Rule 7.1 was substantially rewritten to describe the types of communications subject to regulation under Rule 7.1and to exclude other forms of non-commercial speech.
• Rule 7.2 was eliminated in its entirety, although the specific and cumulative case results disclaimer requirement is now Rule 7.1(b) and provisions in Rule 7.2 regulating written solicitation and paying others to recommend a lawyer have been incorporated within Rule 7.3.
• Rule 7.3 addresses in-person and written solicitation of potential clients. The amendments to Rule 7.3 remove the current per se prohibition of in-person solicitation in personal injury and wrongful death cases. Effective July 1, 2013, in-person and written solicitation will be improper only if:
  • the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or
  • the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.
• Rule 7.3 also regulates payment or rewards to persons for recommending employment, prohibiting a lawyer from giving anything of value to a referral source except that the lawyer may:
  • pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1;
  • pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service (note that the lawyer referral service must be a non-profit entity);
  • pay for a law practice in accordance with Rule 1.17; and
  • give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer's services.
• Rule 7.3’s regulation of written solicitations has been simplified with regard to the “ADVERTISING MATERIAL” labeling requirement.
• Rule 7.4 regulates claims of specialization and expertise and the current rule is substantially unchanged by the amendments.
• Rule 7.5 is substantially unchanged with the exception of a new Comment [3] that states that lawyers should practice using the official name under which they are licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia. The lawyer’s use of a name other than the lawyer's name on record with the Virginia State Bar may be a misleading communication about the lawyer's services to the public in violation of Rule 7.1.http://www.courts.state.va.us/courts/scv/amendments/2013_0415_rules_7_1_7_5.pdf

Legal Ethics--It's complicated

Many lawyers believe that they can conduct a law practice ethically following their sense of what is morally "the right thing to do."  Relying on what their mother taught them and the "smell test" they think that ethical matters can be handled intuitively.  Of course, lying, cheating and stealing are obvious ethical breaches, but legal ethics has evolved into a body of law as complex as civil procedure and other courses law students take.  Some of the rules are counter-intuitive.  Not long ago I attended a marketing seminar for lawyers where the speaker, a lawyer, proudly spoke of her practice of sending small gifts as "tokens of appreciation" to persons that brought clients to her firm.  The Virginia Rules of Professional Conduct prohibit this and I had the CLE sponsor sent a message out to the attendees bringing this to their attention.  See Va. Rule 7.3(d).

Recently I took a call from a lawyer that wanted to move to disqualfy a law firm that was adverse to the caller's client and had recently hired an associate from a very large firm.  The associate's former law firm had represented the caller's client in a related matter while the associate worked there.  The associate was not even aware that the caller's client had been a client of his former law firm, had no knowledge of the matter handled by his former law firm nor any personal involvement.  I informed the caller that there was no conflict of interest and no basis to file a motion to disqualfiy the firm.  He responded, "Really?  That can't be right."  I explained that conflicts are imputed under Rule 1.10 to other lawyers associated in a law firm, but the rules are different when lawyer move between firms.

More examples can be cited but the bottom line is that lawyers have to read, understand and know the rules and they cannot "go with their gut."

Lawyers Need to be Aware of Fake Reviews

I did an interview for the ABA Journal that was published in August 2012.  See ABA Journal, August 2012 at pp. 24-25.  The topic of interest was the discovery of several incidents of online reviews of lawyers and law firms purporting to have been written by clients.  Random Google searches of firms revealed "five star" reviews of various law firms created by persons who claimed to be clients of the law firm.  Contacting the reviewers for verification is not possible.  Google has acknowledged that bogus reviews are a problem but Google does not create reviews.  Lawyers who hire marketing firms to boost their image and ratings online must ensure that the consultant is not using improper or deceptive practices, including manufacturing fake reviews about the quality of the lawyer's services.  In the interview, I advise that lawyers who advertise and use the Internet to marker their services have an ethical duty to periodically Google their name and see what's out there.  Lawyers should be monitoring and policing what others say about them.

Bad Ethics Rules that Need to be Incinerated!

This is a 6 min presentation  on YouTube by Will Hornsby on some of the most ridiculous ethics rules adopted in some states:

http://www.youtube.com/watch?v=dqo_2JwzgUc&list=PLF236BD0804ED6416&index=5&feature=plcp

Enjoy.

ABA Nixes Proposal to Allow Non-Lawyers to Own Law Firms

ABA COMMISSION ON ETHICS 20/20 WILL NOT PROPOSE CHANGES TO ABA POLICY PROHIBITING NONLAWYER OWNERSHIP OF LAW FIRMS CHICAGO, April 16, 2012-At its April 12-13 meeting in Washington, D.C., the ABA Commission on Ethics 20/20 decided not to propose changes to ABA policy prohibiting nonlawyer ownership of law firms.


Co-Chairs Jamie S. Gorelick and Michael Traynor said, "Since its creation in 2009, the commission has undertaken a careful study of alternative law practice structures. Based on the commission's extensive outreach, research, consultation, and the response of the profession, there does not appear to be a sufficient basis for recommending a change to ABA policy on nonlawyer ownership of law firms."

By June 2011, the commission had publicly rejected certain forms of nonlawyer ownership that some other countries currently permit, including multidisciplinary practices, publicly traded law firms, and passive, outside nonlawyer investment or ownership in law firms.

After further consideration and study, on Dec. 2, 2011, the commission released for comment a discussion draft describing a limited form of court-regulated, nonlawyer ownership of law firms. It would have allowed nonlawyers, who were employed by a law firm and assisted the firm's lawyers in the provision of legal services, to have a minority financial interest in the firm and share in its profits. The discussion draft reflected an approach that was similar to but more restrictive than the structure permitted by the District of Columbia for more than 20 years.

"The commission considered the pros and cons, including thoughtful comments that the changes recommended in the discussion draft were both too modest and too expansive, and concluded that the case had not been made for proceeding even with a form of nonlawyer ownership that is more limited than the D.C. model," Gorelick and Traynor said.

Although it will not propose any changes to ABA policy on nonlawyer ownership of law firms, the commission will continue to consider how to provide practical guidance about choice of law problems that are arising because some jurisdictions, including the District of Columbia and a growing number of foreign jurisdictions, permit nonlawyer ownership of law firms.

"These are current problems that need pragmatic attention," Gorelick and Traynor said. "The commission previously released draft proposals on these issues, and will decide at its October 2012 meeting whether to submit formal proposals to the ABA House of Delegates for consideration in February 2013. Meanwhile, the commission welcomes additional comments on the previously released drafts."

The ABA Commission on Ethics 20/20 was created in 2009 and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.

Members of the commission include judges, law professors who specialize in legal ethics, practitioners (including former ABA, state bar and local bar presidents), and liaison members from the ABA Board of Governors, Center for Professional Responsibility, Task Force on International Trade in Legal Services, Standing Committee on Ethics and Professional Responsibility, and Young Lawyers Division.

Co-chair Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. Co-chair Traynor, of Berkeley, Calif., is a past president of the American Law Institute and currently chairs the institute's council.

The Nursery Rhyme Lawyer

Have you ever wondered what would happen if Jack and Jill or Humpty Dumpty sued for their personal injuries?  Call the Nursery Rhyme Lawyer!  Click on this link to hear his song:

http://video.thebillablehour.com/video/Throwing-Toasters-performs-Nurs#

Most significant changes in the practice of law

A timely article in this week's issue (9/5/11) of the Virginia Lawyers Weekly (Dolan Publishing Co.), celebrating its 25th "Silver Anniversary" as a paper, covered interviews of prominent lawyers in our state who were asked to identify the most significant changes in the practice of law: Marketing and specialization, commercialization, and a substantial decline in jury trials were the top three.