Supreme Court reconsiders rules on lawyer ads

Just two days before new rules on lawyer advertising in Virginia were scheduled to take effect, the Supreme Court of Virginia abruptly dropped the planned revision.

In a Nov. 29 order, the court “vacated and set aside” its Sept. 18 approval of modifications to the lawyer advertising rules. Those modifications were scheduled to take effect Dec. 1.

The new order said the change was made for “reasons appearing to the Court.” The order does not make any referral of the issue to the VSB for further study, so the matter of any rule changes apparently remains with the court.

The court’s rule changes would have tightened restrictions on claims of specialty and expertise. Lawyers would no longer have been able to claim they were certified as specialists by any organization. Only three types of specialty claims would have been allowed in lawyer ads: “patent attorney,” “Admiralty,” and “certified mediator” (or other Supreme Court certification).

The proposed changes also would have left in place strict requirements for disclaimers on claims about case results.

The court’s September rewrite of the advertising rules appeared to be a rebuff of suggestions by the VSB and its committee on legal ethics to simplify and streamline advertising rules. The VSB panel urged the elimination of many specific restrictions in light of the overall prohibition of “false or misleading” communication by lawyers.

“We struggled with the First Amendment,” said committee vice chair Aubrey J. Rosser Jr. in September, commenting on the VSB panel’s recommendation.

Restrictions on case results in lawyer advertising are the subject of an appeal now before the Supreme Court. Richmond lawyer Horace Hunter is appealing a July public admonition for discussing case results without an appropriate disclaimer. A three-judge circuit court 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.”

Hunter claims the First Amendment bars any disclaimer requirement. The Virginia State Bar objects to the court’s prescribed language as inadequate.

The VSB also charged Hunter with misconduct for posting explicit details of his cases without client permission. The circuit court found the First Amendment protected Hunter’s accounts of his cases. The VSB challenges that finding on appeal, as well.

Virginia State Bar Ethics Counsel James M. McCauley said Thursday he did not know why the court pulled back the new rules.

Richmond lawyer Joel D. Bieber – a frequent advertiser – said he had no insight into the Supreme Court’s decision. The “reasons appearing to the Court” apparently “have not yet filtered down to me,” Bieber said in an email.

Norfolk’s Lowell A. Stanley, another regular advertiser, said the old rules are fine by him. “I don’t know why the bar wanted to change them,” he said. “The rules have worked in the past. I see no reason why they shouldn’t continue to work in the future,” he added.

First Amendment scholar Rodney A. Smolla, Hunter’s lawyer in his battle with the VSB, declined comment because the case is pending before the high court.

Hunter said he expects oral arguments in his case during the court’s term in January.