Wednesday, December 03, 2014
If a lawyer makes an allegation of misconduct on the part of another lawyer, he or she must report it to the state bar. Otherwise, the lawyer making the accusation has engaged in misconduct and is subject to discipline.
Monday, October 21, 2013
Supreme Court of Virginia Issues 4 opinions in 2013 involving lawyers disciplined by the Virginia State Bar
Friday, August 09, 2013
An emerging practice in marketing professional services on the Internet is the use of professional marketing agencies that contract to create, set up and place content on the professional’s blog that he or she uses to market their professional services. For lawyers, the propriety of using a “ghost blogger” to write and post content on the lawyer’s blog is a recent hot topic for legal ethicists.
While other professionals may be permitted to use “ghost bloggers,” the informal consensus is that lawyers may not, primarily because of the lawyer advertising rules and rules prohibiting deceit or dishonesty. See Rules 7.1 and 8.4(c). Essentially, holding out another’s work product as one’s own is deceptive. While there is absolutely nothing wrong with using outside and creative talent to craft a blog, a lawyer that uses a “ghost blogger” without a disclaimer, to publicly advertise the lawyer’s engagement with and competence in a particular area, violates Rule 7.1’s prohibition against misleading statements or claims in public communications about the lawyer or the lawyer’s services.
Lawyers often use blogs to discuss recent developments in the law and breaking news in their area of practice. Some lawyers use blogs to provide legal information to clients, former clients, potential clients and members of the general public that might be interested in the lawyer’s area of practice. Lawyers that outsource this work to a non-lawyer and do not review their work before it is posted also do a grave disservice to the members of the public that may visit the lawyer’s blog. When lawyers outsource work or services to non-lawyers, lawyers have an ethical obligation to ensure that that the non-lawyer’s conduct or work conforms to the lawyer’s professional obligations. LEO 1850 (2010). Similarly, when lawyers rely on non-lawyers to develop their marketing over the Internet, lawyers have an ethical duty to review that work product to ensure it is compliant with the lawyer advertising rules, before it is posted on the lawyer’s blog.
While the lawyer may have paid the “ghost blogger” for permission to post content on the blog without attribution—thereby ruling out a charge of plagiarism—there remains the risk that without an appropriate disclaimer or attribution, blog visitors will reasonably assume that that the thoughts and ideas expressed are those of the lawyer’s when in fact that is not the case. Passing off someone else’s writing or ideas as one’s own, in a marketing vehicle designed to induce potential clients to hire the lawyer is not only unethical, but a bad way to initiate a professional relationship that is supposed to be built on trust. When the means used to solicit the client are deceptive, this does not bode well for the ensuing professional relationship. Candor and trust are essential characteristics of a lawyer’s practice.
Lawyers may understandably be too busy to create their own marketing ideas, statements and claims and certainly have good reasons to engage a marketing professional to assist them with web page and blog content. Provided there is honesty or transparency in the means by which this is done, there is nothing improper about using the work product of another.
James M. McCauley, VSB Ethics Counsel (July 19, 2013)
Wednesday, April 17, 2013
Changes to Lawyer Advertising Rules Approved by the Supreme Court of Virginia Effective July 1, 2013by 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  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  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
Wednesday, November 28, 2012
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."
Thursday, November 01, 2012
Tuesday, May 15, 2012