These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 82 - Advertising
LEO NumTopicsSummaryDate
1164

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82-Advertising

A law firm may join the list of firms to be recommended to members of a prepaid legal services plan as long as all advertisements are accurate. 1/26/1989
0917

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82-Advertising

A law firm may not advertise that it has been in operation since 1882 when there was a gap in its operation from 1917 until 1925. 6/11/1987
1119

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82-Advertising

A lawyer acted properly in preparing a television commercial that used actual clients and properly described actual circumstances [explained in LEO 1750].10/14/1988
1277

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58-Real Estate Lawyers

82-Advertising

A lawyer handling a foreclosure may advertise that the purchaser must pay legal fees for certain specified services. 9/21/1989
0397

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31-Protecting and Disclosing Confidences and Secrets

82-Advertising

A lawyer may list former and present clients in an advertisement if the clients consent and may also refer to the lawyer's aviation law experience in the advertisements.11/13/1980
1052

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82-Advertising

A lawyer may prepare a display advertisement for a local grocery store that includes the lawyer's name, address, phone number and the four areas in which the lawyer practices. 3/8/1988
0395

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82-Advertising

A lawyer may use the designation "LLM (Taxation)" in an advertisement. 11/14/1980
1175

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47-Lawyer Referral Services

82-Advertising

A lawyer referral service advertisement must clearly indicate whether it is for a law firm or a lawyer referral service. 1/31/1989
1292

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82-Advertising

86-Descriptions of Certification and Specialization

A lawyer who has lectured in a CLE program may advertise this fact as long as the advertisement is accurate and does not imply that the lawyer is a certified specialist. 10/19/1989
0202

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55-Firm Names and Letterhead

82-Advertising

A lawyer who holds a JD degree may use the title "Doctor." 11/13/1969
1321

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82-Advertising

A lawyer's advertisements should: include only factual assertions and not opinions; be easily verifiable and not subject to ambiguous interpretations; and not convey the impression that the lawyer's skills rather than justice of the claim is determinative. [Overruled to the extent the conclusion is inconsistent with LEO 1750, as revised on 12/18/08.]2/27/1990
0211

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82-Advertising

A professional association may include a lawyer's name on the referral list its members use. 8/19/1971
1405

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16-Lawyer's Personal Interests

50-Lawyer-Owned Businesses

53-Office Sharing with Non-Lawyers

58-Real Estate Lawyers

82-Advertising

A title insurance company owned by a lawyer and sharing office space with the lawyer's firm may not pay for the firm's salaries or advertisements. [This LEO was further explained in LEO 1564.] 9/17/1991
1385

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82-Advertising

A Virginia lawyer who was also a member of the Florida Bar and a board certified tax lawyer in Florida may advertise this status in Virginia, as long as the advertisement specifies that the status was granted by a bar other than Virginia's. [Rule 7.4(d) would now require that the advertisement explain that Virginia has no procedure for approving certifying organizations.]11/30/1990
1297

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82-Advertising

Advertisement using statements such as "the best lawyers" may be inherently misleading. [Overruled to the extent the conclusion is inconsistent with LEO 1750, as revised on 12/18/08.]10/19/1989
1229

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52-Fees in Family Law Cases

73-Family Law Lawyers

82-Advertising

An advertisement indicating that contingent fees in domestic cases are generally acceptable would be misleading, but the advertisement could indicate that a contingent fee may be possible if child support arrearages have been reduced to judgment. [Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.]4/25/1989
1443

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82-Advertising

An advertisement stating that a law firm can "guarantee you get justice with the insurance company" is unethical. 1/6/1992
ABA-457

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13-Marketing - Miscellaneous

82-Advertising

In a general discussion of lawyer and law firm websites, the ABA explains that: (1) websites can include information about clients and matters, as long as the website keeps the information up to date (and thus is not misleading) and "as long as the clients or former clients give informed consent" to the inclusion of "[s]pecific information that identifies current or former clients or the scope of their matters"; (2) websites can include information about the law, as long as it is accurate, current and not misleading (acknowledging that it is difficult to draw the line between general legal information and specific legal advice, and suggesting that it would be "prudent" for websites to warn visitors "that the legal information provided is general and should not be relied on as legal advice" -- which "cannot be given without full consideration of all relevant information relating to the visitor's individual situation"); (3) websites allow lawyers to "control features and contents so as to invite, encourage, limit, or discourage the flow of information to and from website visitors" -- which will help determine if a visitor has initiated a "discussion" that could render the visitor a "prospective client" under Rule 1.18 (contrasting a website that encourages visitors to "submit a personal inquiry about a proposed representation" and a website that simply lists information about the lawyer and includes contact information, which "alone does not create a reasonable expectation that the lawyer is willing to discuss a specific client lawyer relationship"; warning that "[i]mprecision in a website message and failure to include a clarifying disclaimer may result in a website visitor reasonably viewing the website communication itself as the first step in a discussion"; in analyzing the "significantly harmful" standard under Rule 1.18; explaining that a prospective client that discloses "only an intention to bring a particular lawsuit" normally will not be able to argue that such information could be "significantly harmful"; (4) a website's "[w]arnings or cautionary statements . . . can be designed to and may effectively limit, condition, or disclaim a lawyer's obligation to a website reader," as long as they are "reasonably understandable, properly placed, and not misleading." Among other things, such language "should be conspicuously placed to assure that the reader is likely to see it before proceeding." Such language can avoid misunderstandings about the creation of a client lawyer relationship, a visitor's expectation of confidentiality, the absence of "legal advice" on the website and whether "the lawyer will be prevented from representing an adverse party."8/5/2010
ABA-465

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13-Marketing - Miscellaneous

38-Fee Splitting

40-Trust Accounts

82-Advertising

Lawyers may engage in "daily deal" marketing, but must comply with all of their Model Rules obligations, "including avoiding false or misleading statements and conflicts of interest, providing competent and diligent representation, and appropriately handling all money received." Under a "coupon deal" arrangement, a lawyer sells a coupon entitling the purchaser to a certain number of hours of legal service at a discounted rate. The marketing organization handling the arrangement collects purchasers' payments and forwards them to the lawyer, retaining a contractually-agreed upon percentage of the payments. The purchaser later directly pays the lawyer at the discounted rate when the lawyer provides the services. Under a "prepaid deal" arrangement, the purchaser pays the marketing organization the entire legal fee, and then receives services that would normally have cost more than that payment. Despite some state bars conclusion that such daily deal marketing are per se unethical, the ABA Model Rules do not automatically prohibit such daily deals if lawyers follow the Rules. First, payments to the marketing organization do not constitute unethical fee splitting. Instead, they essential constitute "payment for advertising and processing services." However, "one caveat is that the percentage retained by the marketing organization must be reasonable." Second, lawyers may not advertise daily deals in a false or misleading fashion. For instance, lawyers must "define the scope of services offered," and "explain under what circumstances the purchase price of a deal may be refunded, to whom, and what amount." Third, lawyers must explain that until the lawyer and the daily deal purchaser engage in a "consultation," no client-lawyer relationship exists. Lawyers must further warn anyone trading for, or receiving as a gift, any daily deal rights must carefully review all the terms and conditions. Fourth, before entering into a client-lawyer relationship, lawyers must assure that they are competent to undertake the representation, and warn any prospective clients if their matters will require more of the lawyers' time than the prospective client purchased under the daily deal. Lawyers must also assure that they do not accept so many daily deal clients that they cannot competently and diligently represent them all. Fifth, lawyers must properly handle any payments they receive from the marketing organization. Under a coupon deal, payments collected by the marketing organization and sent to lawyers are not legal fees -- and must be deposited into lawyers' operating account. Under a prepaid deal, payments lawyers receive from the marketing organization constitute "advance legal fees," and must be deposited into the lawyers' trust account. Lawyers must explain to anyone purchasing a prepaid deal what amount of the payment "is not a legal fee and will be retained by the marketing organization." Although it may be difficult, lawyers must also coordinate with marketing organizations to obtain required information about the purchasers whose funds the lawyers deposit into their trust account. Sixth, lawyers must properly handle money they have received in connection with purchasers who never use the lawyer's services. If a coupon purchaser never uses the lawyer's services, the lawyer may retain such payments (despite some state bars' disagreement) -- if the lawyer has "explained as part of the offer that the cost of the coupon will not be refunded." If a prepaid deal purchaser never uses the lawyer's services, the lawyer "likely" must refund any unearned advanced fees -- unless the prepaid offer was "for a simple service at a modest charge," in which case "it is possible no refund would be required, provided proper and full disclosure of a no-refund policy had been made." Seventh, lawyers must properly handle money they receive from daily deal purchasers whom the lawyer cannot represent because of a conflict or other "ethical impediment." In such a situation, lawyers must provide a full refund to the purchaser under either a coupon or a prepaid deal -- and cannot avoid this duty by disclosing otherwise in marketing materials. Because the lawyer is unable to undertake the representation "through no fault of the purchaser," the lawyer must refund all the money the purchaser has paid -- even if the lawyer cannot recoup the money retained by the marketing organization.10/21/2013
1872

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31-Protecting and Disclosing Confidences and Secrets

45-Law Firms - Miscellaneous

53-Office Sharing with Non-Lawyers

82-Advertising

Lawyers must be mindful of their confidentiality, supervision and marketing responsibilities, among other things, if they practice "virtually," or if they combine a virtual practice with an "executive office suite" for meetings and other activities requiring a physical office. Lawyers sharing a space with nonlawyers must take reasonable steps to protect client confidences. Lawyers must also take reasonable steps to protect their clients' confidential information when dealing with technology, including examining "the third party provider's use of technology and terms of service" before using such provider's cloud computing or other services (lawyers unable to assess these factors on their own "will have to consult with someone qualified to make that determination"). Lawyer might also have an obligation to explain to their clients the risk of using certain methods of communication and storage. A lawyer not physically present with colleagues and staff must nevertheless comply with the normal duties of supervising subordinate lawyers and nonlawyers. Lawyers may not use misleading marketing by listing as an office a place where the lawyer does not actually practice (analyzing the situation using such factors as the frequency with which the lawyer uses the space, whether nonlawyers also use the space, signage, etc.). Under the current Virginia regulations (which are the subject of proposed amendments), lawyers admitted by motion to practice in Virginia must maintain an office where they can see clients (which does not include a "virtual office or shared occupancy arrangements").3/29/2013
1873

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12-Withdrawing Lawyers (Including Non-Compete Issues)

55-Firm Names and Letterhead

82-Advertising

The hypothetical law firm of "Smith & Jones, P.C.," need not immediately stop using the Internet domain name and URL "smithjones.com" after Smith withdraws from the P.C. An immediate termination would not serve "the interests of the public" or "the partners in the former firm who collectively built goodwill and created value associated with that firm name." The "appropriate way of explaining why smithjones.com is no longer the Smith & Jones website" is to place a notice on that website. Although the P.C. owns the former domain name, it may not indicate on the website that the Smith & Jones "has now become" the "Jones Law Office," because that implies that Smith is no longer practicing law. Similarly, any redirection of visitors to the smithjones.com website to the "joneslawoffice.com" website also requires additional information. Such redirection is appropriate only if the joneslawoffice.com website, or a page visable during the process of redirecting, "explains the change from Smith & Jones to Jones Law Office and that Smith continues to practice law in a different firm."3/20/2014
1750

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47-Lawyer Referral Services

82-Advertising

85-Business Cards

This compendium opinion (initially issued on 3/20/01, and revised on 4/4/06 and 12/18/08) provides guidelines about lawyer advertising: advertisements using actors to portray lawyers or employees must disclose "that the actor is not a member or employee of the firm or that the depiction is a dramatization;" [overruling LEO 1119 to the extent it is inconsistent]; advertisements may not use terms such as "no recovery, no fee"; "we guarantee to win, or you don't pay"; "we are paid only if you collect"; "no charge unless we win" and must explain that litigation expenses and court costs would be payable regardless of outcome (because the public "may not distinguish the difference between the terms 'fee' and 'costs'") [overruling LEO 1029 to the extent that it is inconsistent]; lawyers may use a fictitious name for their firm as long as they practice under that name (and use the name on signage, letterheads, business cards, etc.) and the name is not misleading; advertisements may not indicate that automobile accident victims "will have to consult an attorney"; lawyers participating in lawyer referral services may not falsely imply that the lawyer's inclusion on a referral list is based on quality, that the referral list includes all lawyers or law firms eligible for the list on some objective criteria, or that there are many lawyers participating in the service in a certain geographic area; advertisements may not "advertise specific case results, whether individually or cumulatively" absent the disclaimer required by Rule 7.2(a)(3); clients' testimonials may not make claims that lawyers could not themselves make, but may include such "soft endorsements" as "the lawyer always returns phone calls and the attorney always appeared concerned."; advertisements may not use statements such as "the best lawyers" or "the most experienced"; lawyers may state that an A.V. Martindale-Hubbell rating represents its "highest rating"; lawyers may state that they are included in publications such as "The Best Lawyers in America," but must describe the years they were included in such publications if they are ever delisted, may not include any reference to such lists if the lists are "not based upon objective criteria or a legitimate peer review process" or "available to any lawyer who is willing to pay a fee," must not parlay inclusion on such a list into a claim that "I am the best lawyer in America," and may not "impute any such endorsement to others in the law firm not so recognized."; lawyers may not use the word "specialist" or "specialize" if it implies that the lawyer is a certified specialist; lawyers may not use the word "expert" or "expertise" unless "the claim can be factually substantiated"].12/18/2008
ABA-419

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8-Bills and Fees

82-Advertising

This opinion withdraws the following ABA LEOs dealing with advertising and the use of credit cards to pay a lawyer’s bill: 320, 338, 1120, 1176. 7/7/2000

Copyright 2000, Thomas E. Spahn