Virginia Is First to Streamline Lawyer Advertising Rules

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By Joan C. Rogers

The Virginia Supreme Court April 17 adopted streamlined lawyer advertising rules that will make it far easier for attorneys to market their services without risking disciplinary charges.

The amendments strip down the Old Dominion’s advertising regulations to a single rule that forbids false or misleading communications, along with an updated rule on soliciation.

The bold step makes Virginia the first jurisdiction to embrace the substance of changes recommended by the Association of Professional Responsibility Lawyers.

The news drew a big thumbs-up from Mark L. Tuft, who leads the APRL committee that developed its proposals for updating lawyer advertising rules.

“In our opinion, Virginia has set the right approach to modernizing the regulation of lawyer advertising,” Tuft told Bloomberg BNA. He’s a partner in the San Francisco office of Cooper White & Cooper LLP, and has chaired APRL’s Committee on the Regulation of Lawyer Advertising since its inception.

Virginia’s move to pared-down rules is likely to fuel hopes that that the American Bar Association will incorporate APRL’s far-reaching changes into the Model Rules of Professional Conduct. The ABA Center has a very active working group that’s studying APRL’s proposals, Tuft noted.

Also, Virginia’s dramatic shift may jump-start initiatives in other states to modernize lawyer advertising rules that are out of sync with evolving techniques for marketing legal services. “We know that some other states are undertaking a review of our proposals,” Tuft said.

Virginia Leads the Way

Virginia got a head start on considering APRL’s recommendations because the state bar’s ethics counsel, James McCauley, was on the APRL committee that came up with them.

McCauley shared APRL’s advertising proposal with the Virginia state bar’s ethics committee, which embraced the idea.

“Everybody liked the direction that the APRL report was taking, and that was to simplify lawyer advertising and put it into a single regulatory standard of looking at the content, the statements and claims that are made, and determining whether or not they are false or misleading.” McCauley told Bloomberg BNA.

The Virginia State Bar approved the changes to the advertising rules in February and sent them to the state supreme court in March. The court took swift action, approving the proposals the very next month.

The amendments “arose from a need to simplify and modernize the lawyer advertising rules in light of changes caused by the rise of Internet marketing and communications,” the bar said on its website.

Tuft noted that up to now, the reaction to new modes of advertising, such as Facebook and Snapchat, has been more regulation. But that’s counterproductive because it creates barriers to getting truthful, useful information to consumers, he said.

“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 said.

Pick-and-Choose Approach

Virginia borrowed extensively from APRL’s suggestions, including the idea of having only two rules, but it didn’t adopt APRL’s proposals wholesale. For example, it modified or dropped some of the comments in APRL’s draft rules.

The commonwealth already revised its lawyer advertising and solicitation rules extensively in 2013. It got rid of Rule 7.2 (advertising), moving parts of that rule into Rule 7.1 and 7.3. Also, it eliminated a provision that flatly banned in-person and telephone contact in personal injury and wrongful death cases.

The most recent Virginia changes stripped down Rule 7.1 (communications concerning lawyer’s services) to a single paragraph that forbids false or misleading communications.

Also, the latest updates ditched Rule 7.4 (communicating fields of practice and certification) and Rule 7.5 (lawyer and law firm names), addressing those subjects in the comments to revised Rule 7.1.

Virginia’s revised Rule 7.3 (solicitation) incorporates some new language from APRL’s proposal, but still leaves out the blanket ban against in-person solicitation set out in Model Rule 7.3 and APRL’s draft Rule 7.3.

ABA Working Group

After APRL asked the ABA to consider its proposals, the ABA Standing Committee on Ethics and Professional Responsibility asked for comments and convened a forum to get feedback on APRL’s proposals. 33 Law. Man. Prof. Conduct 66, 2/8/17

Also, the Standing Committee designated a working group to review the draft changes and comments, and give a report to the full committee. The Working Group on Advertising has representatives from all five standing committees of the ABA Center for Professional Responsibility, as well as liaisons from the National Organization of Bar Counsel and other groups.

The working group plans to make recommendations to the ethics committee by June, according to Lynda C. Shely , who’s a member of the working group and the APRL committee that drafted the proposed reforms.

“We are working our way through the APRL proposal—not necessarily to create revised draft amendments, but to review each APRL proposal,” Shely told Bloomberg BNA.

The hope is to have draft amendments finalized by August 2017, Shely said. The drafts would then be circulated to all ABA entities, state bars and state supreme courts for their consideration, and then go before the ABA House of Delegates in February 2018.

“Once a working draft is available, APRL will be helping the Center Committees disseminate the draft, as well as reaching out to interested stakeholders to answer any questions they may have,” Shely said.

“Personally, I’m delighted to see Virginia taking the initiative,” she said.

APRL Proposes Big Changes

APRL’s proposed amendments would radically revamp the regulation of lawyer advertising if the ABA endorses the recommendations and states embrace them, as Virginia has done.

APRL issued its proposals in two successive reports. A 2015 report exhorted the ABA to eliminate most of its model rules on lawyer advertising, leaving a single rule against false or misleading statements. The report also urged states to deal with complaints about lawyer advertising through nondisciplinary means in most cases. 31 Law. Man. Prof. Conduct 376, 7/1/15

A supplemental APRL report in 2016 recommended updates to the ABA’s model rule on solicitation of clients, including an end to the ban on certain forms of real-time electronic contact. 32 Law. Man. Prof. Conduct 289, 5/18/16

APRL has put together a two-page “talking points” memorandum that summarizes its proposed revisions and the reasons for them.

“The proposals facilitate access to justice by permitting lawyers to provide consumers with accurate information about the availability and affordability of legal services, as well as the value added of having legal services by lawyers,” the memo says.

APRL isn’t advocating lessening public protection,” Tuft said. “We’re trying to make public protection more effective and more focused,” he said.

“Our report by and large has been well received,” Tuft said. “There will be some comments and concerns, but at least there’s a dialogue underway, and now some progress is being made to bring our advertising rules in line with what it is we should be regulating.”

Rule 7.4 Under Discussion

Shely said that at the 43rd ABA National Conference on Professional Responsibility in St. Louis, she and Wendy Chang, who chairs the Standing Committee’s working group on advertising, will be attending a specialization roundtable to hear suggestions for updating Model Rule 7.4.

“We were pleased to be invited and look forward to working with this group to maintain the important role certification programs have in assuring the objective qualifications of lawyers who use the moniker ‘certified specialist,’” Shely said.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

For More Information

Full text of amended rules at http://src.bna.com/oh7.APRL's synopsis of its proposals can be viewed at http://src.bna.com/ojc.

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