Based on a perceived need to “simplify and modernize” lawyer advertising rules, the Commonwealth of Virginia’s supreme court has adopted a new set of regulations that will make it easier for lawyers there to market their services. The slimmed-down rule, effective July 1, will consist of a single provision that bars false or misleading communications, plus a revised rule on soliciting clients.
The new Virginia regulation pares its Rule 7.1 down to two sentences: one prohibiting “false or misleading” communications about the lawyer or the lawyer’s services; and one defining “false or misleading.”
The changes jettison separate former rules on law firm names and communicating practice specialties, moving those subjects to a few succinct comments in the revised Rule 7.1.
The revised Rule 7.3, on soliciting clients, deletes a former provision that completely barred in-person solicitation of clients in personal injury and wrongful death cases, and now permits all in-person solicitation except when it involves “harassment” and the like, and when the prospective client has informed the lawyer that it’s unwelcome. The Virginia rule gives lawyers more lee-way than does Model Rule 7.3.
Less is more…
The new Virginia rules are patterned on the comprehensive proposals offered in 2015 and 2016 by the Association of Professional Responsibility Lawyers, which has urged the ABA to retire most of the Model Rules on lawyer advertising. The Old Dominion is the first jurisdiction to embrace that approach.
In the ABA/BNA Lawyer’s Manual on Professional Conduct, the chair of the APRL committee that originated the revamp proposal, Mark Tuft, is quoted as saying that reacting to new modes of advertising like Facebook and Snapchat with more regulation is counterproductive.
“Virginia is the first state that has recognized that greater regulation in an effort to respond to advertising in the electronic age is not the way to go,” Tuft told the Lawyers’ Manual.
(For more comment on the Virginia rule reboot, see John Marshall College of Law Professor Alberto Bernabe’s recent blog post: he questions whether the term “misleading” can be — well, misleading. And Memphis lawyer Brian Faughn (who’s also an APRL board member) weighs in as well.)
New Model Rules — maybe
In response to the APRL’s proposals, the ABA’s standing Ethics Committee convened a working group to review the call for an advertising rule revamp; the working group plans to make its recommendations to the Ethics Committee next month, according to the Lawyers’ Manual.
The ABA’s deliberations are at their beginning stages, and it would take some time before any changes made their way into the Model Rules on advertising. And from there, state supreme courts would need to carry out their own vetting processes before possibly adopting any ABA model into a state’s lawyer conduct rules.
But following Virginia’s example, it is possible that states won’t necessarily wait for the ABA, and instead might consider — or even embrace — the APRL’s approach directly.
Is it good for the profession?
The way we market our legal services is a subject that can generate strong opinions — but however you feel about it, lawyer advertising is here to stay. (Bates v. State Bar of Arizona, 433 U.S. 350 (1977).) The public now gets its information about legal services in a multitude of ways that were never dreamed of in 1983, when the ABA promulgated its Model Rules. The current rules in most jurisdictions are cumbersome and over-complicated, yet do nothing to make lawyer marketing dignified or in keeping with a learned profession. (For example, how about putting your firm advertising on a condom package? Or calling yourself “The Gorilla“?) We might as well move toward a streamlined set of regulations that will at least make it easier to communicate with the public about what we have to offer.