The VSB Legal Ethics Department provides a primary function in the role of monitoring lawyer advertising and will continue to monitor and alert lawyers of violations or potential violations of the Rules of Professional Conduct, primarily Rules 7.1 – 7.5, in an effort to help lawyers avoid the disciplinary process. Ethics Counsel will issue non-compliance letters to alert lawyers of problematic electronic advertisements, including Internet, radio, and television advertisements.
Any Virginia lawyer can seek an informal opinion as to whether their advertising material is in compliance with the Rules of Professional Conduct. The advertising material can be submitted to the Legal Ethics Department for review by the ethics staff attorneys. Submit advertising material to [email protected].
Advertising Regulation and Information Checklist
The following quick reference checklist is intended to assist attorneys in developing advertisements that comply with the Rules of Professional Conduct. Compliance with the guidance identified in the checklist is not a guarantee that the advertisement complies with the advertising rules because the checklist cannot cover every possible example of a false or misleading statement. Although not required, the Virginia State Bar’s Ethics Department would be pleased to review your ad in advance of its publication. Proposed ads may be sent to [email protected].
False or Misleading Statements
Does the advertisement/communication contain any false or misleading statements? If yes, then the advertisement violates Rule of Professional Conduct 7.1, which provides that “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.” See, also, Legal Ethics Opinion 1750.
Examples of false or misleading statements include:
- A statement that "you pay nothing unless we win" when the lawyer or law firm may or will require the client to remain responsible for costs and expenses of litigation
- A statement that a lawyer handles a particular type of case when in fact the lawyer’s only involvement is to intake a client and then refer the client to another lawyer outside the
firm.
- A statement that a lawyer charges a certain fee for a particular type of case when the lawyer does not actually charge that fee in those types of cases.
- A statement that omits material facts, such as a statement that “We won a $2 million verdict in this case” when in fact the verdict was overturned on appeal, the verdict was against a non-appearing judgment-proof defendant who was in default, or the lawyer had turned down a $3 million offer.
- A statement that an outcome was not or will not be related to the facts or merits of the particular matter.
- A comparison of the lawyer’s services or fees with the services or fees of other lawyers which cannot be factually substantiated.
- Using an actor to portray a lawyer or client of the firm, without a disclaimer, when the advertisement implies that an actor is actually a lawyer or client of the law firm.
- Using a firm name which suggests that the lawyer practices in a partnership or other organization when the lawyer is not associated with others but is in an office-sharing arrangement only. Comment [6] to Rule 7.1.
- Stating that a lawyer must be consulted regarding a specific legal matter.
Clearly Indicating Solicitation
If the communication is a solicitation of a potential client known to be in need of legal services in a particular matter, does it conspicuously display the words “ADVERTISING MATERIAL” on the outside envelope or at the beginning and ending of any recorded or electronic communication? If yes, then the advertisement complies with Rule 7.3(c).