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