Sweeping Changes Proposed to Virginia Lawyer Advertising Rules

The Virginia State Bar, like most regulators of lawyers around the country, regulates lawyers’ advertising. Sweeping new rules proposed by the Bar will dramatically simplify, and in many ways improve, these rules.

The changes were motivated by a desire to make Virginia’s rules simpler and to better reflect modern digital communications, as opposed to printed advertising that constituted much of what the existing rules were drafted to regulate. The proposed rules also recognized that the Courts have increasingly recognized First Amendment limitations to how much speech can be regulated by lawyer licensing agencies including state bars.

A few highlights of the proposed changes:

  1. Rule 7.1’s requirements for marking advertising material as such and requiring certain disclaimers in advertising are slated for deletion. The new rule, if approved, will contain a simple prohibition against “false or misleading” communications.
  2. New Comment 4 to Rule 7.1 will permit a lawyer to communicate her specialization in a field of practice if she is specialized by her “experience, specialized training, or education, or is certified by a named professional entity.”
  3. Rule 7.3 preserves the requirement that lawyers mark as “advertising material” their envelopes or electronic communications unless the recipient is a lawyer, or has a familial, personal, or prior professional relationship with the lawyer, or the recipient is a person who had prior contact with the lawyer, or if the lawyer’s communication is pursuant to a court-ordered class action notification.
  4. Rule 7.4, describing when and how a lawyer can communicate his field of practice and certification, is set to be deleted. New Rule 7.1’s general bar against false or misleading communications will govern instead.
  5. Likewise, Rule 7.5, governing lawyer and firm names and letterheads is set to be deleted.  Again, Rule 7.1’s general proscription against “false or misleading” communications will replace this lengthy rule.

These rule changes are set to be considered by the VSB Council on February 25, 2017.  If approved there, they will be submitted to the Virginia Supreme Court for the Court’s consideration.

A red-line version of the proposed changes is available here: http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendments_rules_7_2016-09-30