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Advertising, Public Communications and
Solicitation
The body
of law governing attorney advertising is of recent vintage stemming
from the Supreme Court's 1977 decision in Bates v. State
of Arizona, 433 U.S. 350 (1977). The constitutional underpinnings,
however, are found in the first amendment commercial speech
doctrine which was first announced in 1942. One of the reasons
it took 35 years before the Supreme Court reached the question
of lawyer advertising in Bates is that the Bar has traditionally
viewed itself as an elite profession and advertising and solicitation
were viewed as undignified and not befitting a person of such
stature. These traditional views of the profession have been
changing and with those changes came debates about the proper
methods for reaching out to prospective clients. The result
was a code of ethics to address advertising, public communications
and solicitation. The primary limitations imposed thus far address
in-person solicitations. With the increasing dependence on the
Internet, however, all state and national bars are continuously
applying rules regulating lawyer self-promotion to these new
avenues of communication.
For much of the area of advertising, public communications and
solicitation, the ABA Model Rules and the Rules of Professional
Conduct for the Commonwealth of Virginia are the same. Under
ABA Model Rule 7.1 "[a] lawyer shall not make a false or misleading
communication about the lawyer or the lawyer's services." ABA
Model Rule 7.2 identifies authorized methods of communication
and requires that each advertisement contain the name of at
least one lawyer responsible for its content. ABA Model Rule
7.3 prohibits in-person and live telephone contact, but permits
targeted mailings and pre-recorded telephone messages provided
they do not involve coercion, harassment, or undue influence.
In this respect, the Virginia Rules are the same as the ABA
Model Rules.
ABA Model Rule 7.4 addresses the advertisement of specialties
and areas of practice. Since most jurisdictions do not certify
specialists, the rule prohibits lawyers from stating or implying
a specialty, but allows them to state the fields of law in which
they practice. The rule contemplates that states certifying
specialists will draft appropriate provisions relating to the
advertisement of specialties. In Virginia, lawyers may describe
themselves as patent or admiralty lawyers. They may describe
themselves as "certified" specialists in other areas of law
provided the lawyers are certified by the Virginia Supreme Court
or the lawyers name the certifying organization and clearly
state that Virginia has no formal procedure for approving certifying
organizations.
The Internet
The Virginia State Bar determined that a Virginia lawyer advertising
on the Internet is subject to applicable state disciplinary
rules. In general, where existing rules on advertising, public
communications and solicitation can be applied to lawyer advertising
over the Internet, lawyers must comply with such rules.
Virginia Rule 7.1(a), which prohibits false, fraudulent, deceptive
or misleading advertising, applies to all "public communications" including communications over the Internet. Under Virginia Rule
7.1(b), a lawyer or law firm that advertises on the Internet
must make and preserve for at least one year a hard copy of
any advertisement posted on the Internet. This rule is applicable
to advertisements in the form of home pages, postings to bulletin
boards, newsgroups, usenets, telnets, etc.
Lawyers who communicate on the Internet in "real time" chat
rooms must abide by the restrictions on solicitation set forth
in Virginia Rule 7.3. "In-person" communication in personal
injury and wrongful death cases is prohibited, subject to certain
exceptions, by Virginia Rule 7.3(f). "In-person" communications
include not only face to face communication but also "telephonic
communication" which has been defined to include "real time" chat room communication.
Not all of the disciplinary rules that apply to lawyer advertising
via other media will apply to lawyer advertising over the Internet.
As such, the Virginia State Bar will issue further opinions
on this subject as new questions arise.
Our attorneys are well versed at evaluating advertising, public
communication and solicitation scenarios and determining the
appropriate steps required of the lawyer in order to avoid a
violation of the Virginia Rules. We represent lawyers and law
firms in the prosecution and defense of alleged violations of
these rules.
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