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Supreme Court nixes changes in lawyer ad rules

The Supreme Court of Virginia has rejected proposed reforms in lawyer advertising regulations, refusing to relax requirements for disclaimers on claims about case results and tightening limits on the use of words such as “expert” and “specialist.”

With amended advertising rules adopted Sept. 18, the court spurned a plan by the Virginia State Bar and its committee on legal ethics to simplify and streamline advertising rules. The VSB committee had sought to eliminate certain specific regulations in light of the overarching prohibition of “false or misleading” communication by lawyers.

The advertising regulations are contained in Rules 7.1 through 7.4 of the Rules of Professional Conduct. The court’s change will reshuffle the organization of the rules somewhat.

Virginia rules still will require an explicit disclaimer before any statement of case results in lawyer advertising, the court decided. The disclaimer – in bold type face and equivalent font size – must put the case results in a context that is “not misleading” and must state that results depend on a variety of factors and cannot predict future outcomes. The disclaimer “should disclose the impossibility of assuring any particular result,” the court said in its comments to the rule.

The VSB proposal would have changed the rules to “suggest, but not require” a case result disclaimer, and would have removed technical requirements for the font and the placement of the disclaimer.

The Supreme Court also denied the proposed relaxation of rules about lawyers who claim to be “experts” or “specialists.” The VSB would have allowed a lawyer to claim to be an expert if the claim could be “factually substantiated” under a definition of “expert” from federal regulations. A lawyer could claim to be a “specialist” if the statement was “true and not misleading.”

Instead, the court adopted an even more stringent rule for claims of lawyer expertise.

Gone is the provision that allowed lawyers to state they are certified as specialists by various organizations. The previous rule allowed such statements if the lawyer also disclosed that there is no procedure in Virginia for approving certifying organizations.

Now, only three types of “specialties” can be mentioned in lawyer advertising: “patent attorney,” “Admiralty,” and “certified mediator” (or other Supreme Court certification).

The rules still allow lawyers to state that they “limit their practice” to a particular field of law.

Aubrey J. Rosser Jr., vice chair of the VSB legal ethics committee, said the committee sought to relax the advertising rules somewhat, with an eye on avoiding constitutional objections. “We struggled with the First Amendment,” he said.

The VSB proposal would have emphasized the need for “great care” in avoiding misleading statements about case results, said VSB Ethics Counsel James M. McCauley. “The committee thought the bar could police the rule on the general ‘false and misleading’ standard,” he said.

A lawyer discipline case involving a lawyer’s blog posts about his courthouse victories may provide another opportunity for the Supreme Court to speak on the issue of case result disclaimers.

Horace F. Hunter of Richmond is appealing his July public admonition with terms for discussing case results without an appropriate disclaimer. A three-judge panel ordered Hunter to state: “Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.”

The VSB objected to the directed language as inadequate in Hunter’s case. The case now is before the Supreme Court.

The Supreme Court adopted the VSB proposal for reworded regulations for lawyers’ direct advertising, keeping the requirement for the uppercase words “ADVERTISING MATERIAL” on the outside of any direct mail solicitation. The VSB council rejected an effort to remove that requirement last fall.

The court agreed with the VSB’s proposal to remove a ban on in-person solicitation. The Virginia Trial Lawyers Association had objected to the proposed change, saying the new regulations would be more difficult to apply than a bright line ban against one-on-one solicitation.

he new rule bars solicitations involving “harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.”

The court took its editing pen to trim committee comments on the potential for abuse inherent in direct solicitations, but the court retained suggested language saying the propriety of a lawyer’s communication will be judged by the “totality of circumstances.”

The court’s new rules on lawyer advertising take effect Dec. 1.


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