Virginia Supreme Court approves advertising changes

You’ve heard there were changes for advertising. But what do they mean?

In short, the advertising rules for lawyers have been streamlined to address concerns over free speech protections and the growing use of internet marketing and social media. The changes were supported by VTLA, recommended by the Virginia State Bar Council and just this month, approved by the Virginia Supreme Court.

Jim McCauley, VSB ethics counsel, explained the changes at the VTLA Convention:

“Rules 7.1 and 7.3 will comprise all regulation of lawyer advertising and solicitation. This is a significant step toward deregulation and simplification of regulation,” he said.

The revisions to Rules 7.1-7.5, governing lawyer advertising include the deletion of Rules 7.4 and 7.5 and the streamlining of Rule 7.1 to a single statement that communications about a lawyer’s services may not be false or misleading. Claims of specialization and the content of firm names, previously addressed by Rules 7.4 and 7.5 respectively, are addressed now by comments to Rule 7.1, since they are just specific examples of the general obligation not to make false or misleading statements. The required disclaimer for statements of case results has been removed from Rule 7.1, again shifting to a general false or misleading standard rather than a mandatory technical requirement. Only minor changes were made to Rule 7.3, on solicitation of clients, to more clearly define the term “solicitation” and to expand the comments to more clearly explain how the Rules apply to paying for marketing services, including paying for lead generation.

The changes to Rules 7.1, 7.4, and 7.5 largely derive from a report and recommendation issued by a committee of the Association of Professional Responsibility Lawyers (APRL) describing the need to simplify and modernize lawyer advertising rules in light of changes caused by the rise of Internet marketing and communications, and in light of increasing concern about the viability of constitutional or antitrust challenges to advertising regulations. Many advertising rules were developed in a time when print advertising was primary, and therefore are unwieldy or impractical when applied to now-common Internet communications. For example, the requirement that a disclaimer must precede each statement of case results makes it impossible to ever mention a case outcome on Twitter, because the disclaimer alone would exceed the character limit of a Twitter post. The cross-border nature of Internet communications also raises difficult issues, as advertising rules vary greatly from state to state and lawyers often find it impossible to comply with all the rules that could possibly apply to their communications.

Surveys conducted by APRL as part of its study of states’ approaches to the advertising rules show that the majority of complaints about lawyer advertising come from competing lawyers and involve technical rule violations; consumer complaints about lawyer advertising are rare, and when they are made, generally involve communications or conduct that are clearly false and misleading. These findings suggest that technical requirements, like the specifically required text and placement of the case results disclaimer currently present in Rule 7.1(b), may not be justified by the need to protect clients or the public.

The Committee also considered the APRL committee’s analysis of a number of case decisions in the last decade that have struck down lawyer advertising rules, and the fact that restrictions on speech are particularly vulnerable when there is a lack of empirical support for the necessity of the restriction. The recent United States Supreme Court decision in North Carolina State Board of Dental Examiners v. F.T.C., 547 U.S. ­­­___, 135 S. Ct. 1101 (2015), has also raised concerns for regulators about the possibility of increased antitrust scrutiny of regulatory actions, particularly if it appears that the regulation is being carried out by lawyers with a competitive interest in the market.

The Committee determined, based on all of these factors, that the best option is to adopt the APRL committee’s recommendation to streamline the rules to focus on the core issue of preventing false or misleading speech, as well as the specific concerns raised by solicitation of clients, and to otherwise remove or relax technical regulations that have no demonstrated connection to public protection.


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