Senate Bill No. 563
(By Senators Chafin and Deem)
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[Introduced February 14, 2006; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §30-2A-1, §30-2A-2,
§30-2A-3, §30-2A-4, §30-2A-5, §30-2A-6, §30-2A-7, §30-2A-8,
§30-2A-9, §30-2A-10, §30-2A-11, §30-2A-12, §30-2A-13,
§30-2A-14 and §30-2A-15, all relating to regulating the
advertising of legal services; establishing an Attorneys'
Advertising Commission; and providing provisions addressing
the advertising of fees, filing of advertisements, obtaining
advisory opinions, reviewing of proposed advertisements,
direct contact with prospective clients, waiver and forfeiture
of fees for prohibited solicitation, communications concerning
a lawyer's service, contents of advertisements and firm names
and letterheads.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §30-2A-1, §30-2A-2,
§30-2A-3, §30-2A-4, §30-2A-5, §30-2A-6, §30-2A-7, §30-2A-8,
§30-2A-9, §30-2A-10, §30-2A-11, §30-2A-12, §30-2A-13, §30-2A-14 and
§30-2A-15, all to read as follows:
ARTICLE 2A. ADVERTISING OF LEGAL SERVICES.
§30-2A-1. Applicability.
This article applies to advertisements of legal services
directed to residents of West Virginia or which originate in West
Virginia.
§30-2A-2. Definitions.
For the purposes of this article the following definitions
apply:
(1) "Advertise" or "advertisement" means to furnish any
information or communication containing a lawyer's name or other
identifying information, except the following:
(A) A professional card of a lawyer identifying the lawyer by
name and giving the lawyer's address, telephone number, fax number,
e-mail address, but no other information. A professional card of a
law firm may also give the names of members and associates, and
jurisdictions in which the lawyers are licensed to practice;
(B) A public service broadcast announcement identifying the
sponsor as a lawyer or law firm, by name, address, telephone
number, but no other information;
(C) A professional announcement stating new or changed associations or addresses or change of firm name. It may not state
biographical data except to the extent necessary to identify the
lawyer or to explain the change in his or her association, but it
may state the immediate past position of the lawyer and
jurisdictions in which the lawyer is licensed to practice. It may
give the names and dates of predecessor firms in a continuing line
of succession;
(D) A regularly published professional directory. Each
separate office maintained by a lawyer may have a separate listing.
(E) A sign on or near the law office and in the building
directory identifying the law office and containing only the
information specified in subsection (a) of this section;
(F) A letterhead of a lawyer containing addresses, telephone
numbers, fax numbers, e-mail addresses, the name of the law firm,
associates, and the jurisdictions in which the lawyer is licensed
to practice. A letterhead of a law firm may also give the names of
members and associates, and names and dates relating to deceased
and retired members. A lawyer may be designated "Of Counsel" on a
letterhead if there is a continuing relationship with a lawyer or
law firm, other than as a partner or associate. A lawyer or law
firm may be designated "General Counsel" or by similar professional
reference on stationery of a client if the lawyer or the firm
devotes a substantial amount of professional time in the
representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line
of succession;
(G) Any communication by a lawyer to third parties that is
further distributed by a third party who is not in any way
controlled by the lawyer, and for which distribution the lawyer
pays no consideration, is exempt from all the provisions of this
article except sections ten and eleven of this article.
(H) Communication to, for or on behalf of an existing client
is not included within this definition. It is not the intention of
this article to designate communications performed in the regular
course of representation of an existing client as advertising.
(I) The inclusion of any truthful information pertaining to
national certification by an organization qualifying under
Peel v.
Attorney Registration and Disciplinary Commission of Illinois, 110
S.Ct. 2281 (1990), does not disqualify a communication otherwise
exempt under this article.
(2) "Legal services" means the practice of law as defined by
the court.
(3) "Commission" means the Attorneys' Advertising Commission.
§30-2A-3. Attorneys' Advertising Commission.
(a) There is created an Attorneys' Advertising Commission
which shall perform the functions in regulating lawyer advertising
as prescribed in this article.
(b) The commission consists of three persons appointed by the Supreme Court of Appeals. Each commission member shall be
appointed for a term of three years, except that of the members
initially appointed, one serves a term of one year, one serves a
term of two years and one serves a term of three years, all as
designated by the court. Vacancies for unexpired terms shall be
filled in the same manner as original appointees, but the
appointees hold office only to the end of the unexpired term. No
member may serve more than two terms in succession, and may be
removed at any time by a majority vote of the court.
(c) Each commission member is required to be a citizen of
West Virginia and licensed to practice law in the courts of West
Virginia. Each member of the commission is required to be a
resident of this state and no more than one member may be appointed
from each of the state's congressional districts.
(d) The commission shall be provided with sufficient
administrative assistance from the court as from time to time as it
may require.
(e) The commission has general responsibilities for the
implementation of this article. In discharging its
responsibilities the commission may:
(1) Issue and promulgate rules and forms as may be necessary,
subject to prior approval by the court. Each member of the West
Virginia State Bar Association shall be given at least sixty days
advance notice of any proposed rules and an opportunity to comment on the rules;
(2) Report to the court as necessary on the status of
advertising with recommendations or forms as advisable;
(3) Review advertisements, issue advisory opinions concerning
the compliance of an advertisement with the commission's rules,
conduct such proceedings or investigations as it deems necessary,
or delegate this authority to a commission member or a hearing
officer who shall proceed in the name of the commission; and
(4) Seek out violations of the commission's rules, resolve the
violations under subsection (d), section six of this article, or
refer violations to the Lawyer Disciplinary Board. Referral to the
Lawyer Disciplinary Board may be by any panel or by a majority of
a quorum of the entire commission.
(f) The commission shall prepare a budget for the succeeding
year and shall submit same to the court for inclusion with the
court's budget.
(g) The commission shall act upon advertisements, or issue
advisory opinions.
(h) Nothing in this article creates any cause of action for
any party or right of suit against any member of the commission.
The West Virginia State Bar Association, the court, the Attorneys'
Advertising Commission, Lawyer Disciplinary Board, and all of their
officers, members, employees or agents are immune from civil
liability for all acts in the course of their official duties in regulating lawyer advertising.
§30-2A-4. Advertising of fees.
A lawyer who advertises a fee for routine services and accepts
the employment shall perform the services for the amount
advertised. In addition, a detailed description of what services
are included in the "routine services" shall be supplied to the
commission with each advertisement and to each prospective client.
If the client is required to pay court costs or case expenses in
addition to the attorney's fee, the advertisement shall state in
all capital letters, "COURT COSTS AND CASE EXPENSES ARE THE
RESPONSIBILITY OF THE CLIENT."
§30-2A-5. Filing of advertisements.
(a) A lawyer may not advertise unless the lawyer complies with
this article.
(b)(1) A lawyer may employ the following in an advertisement:
(A) Name, including name of law firm and names of professional
associates, addresses, telephone numbers, fax numbers and e-mail
addresses;
(B) One or more fields of law in which the lawyer or law firm
practices, or a statement that practice is limited to one or more
fields of law, to the extent authorized under section fourteen of
this article;
(C) Date and place of birth;
(D) Date and place of admission to the bar of state and federal courts;
(E) Schools attended, with dates of graduation, degrees and
other scholastic distinctions;
(F) Public or quasi-public offices;
(G) Military services;
(H) Authorships;
(I) Teaching positions;
(J) Memberships, offices and committee assignments, in bar
associations;
(K) Membership and offices in legal fraternities and legal
societies;
(L) Technical and professional licenses;
(M) Memberships in scientific, technical and professional
associations and societies;
(N) Foreign language ability;
(O) Names and addresses of bank references;
(P) With their written consent, names of clients regularly
represented;
(Q) Prepaid or group legal services programs in which the
lawyer participates;
(R) Whether credit cards or other credit arrangements are
accepted;
(S) Office and telephone answering service hours;
(T) Fee for an initial consultation;
(U) Availability upon request of a written schedule of fees or
an estimate of the fee to be charged for specific services;
(V) Contingent fee rates provided that the statement discloses
whether percentages are computed before or after deduction of court
costs and case expenses;
(W) Range of fees for services, provided that the statement
discloses that the specific fee within the range which will be
charged will vary depending upon the particular matter to be
handled for each client and the client is entitled to without
obligation to an estimate of the fee within the range likely to be
charged, in print size equivalent to the largest print used in
setting forth the fee information;
(X) Hourly rate, provided that the statement discloses that
the total fee charged will depend upon the number of hours which
must be devoted to the particular matter to be handled for each
client and the client is entitled to without obligation an estimate
of the fee likely to be charged, in print size at least equivalent
to the largest print used in setting forth the fee information;
(Y) Fixed fees for specific legal services to the extent
authorized under this article; or
(Z) Any other information specified in any rule adopted by the
commission. Any lawyer may petition the commission for the
adoption of a rule in which case the petition shall be published as
provided in this article.
(2) If the advertisement contains only those items listed in
subdivision (1), subsection (a), section five, the lawyer shall
mail or deliver to the commission three copies of the
advertisement. If the advertisement is to be published by
broadcast media, including radio or television, a fair and accurate
representation of the advertisement plus three copies of a typed
transcript of the words spoken shall be submitted. Any such
advertisement is exempt from a fee for submission. Submission
under this subsection shall occur no later than the publication of
the advertisement.
(c) If the advertisement does not qualify under subsection
(a), section five of this article for submission without a fee, the
lawyer shall mail or deliver to the commission three copies of the
advertisement. If the advertisement is to be published by
broadcast media, including radio or television, a fair and accurate
representation of the advertisement plus three copies of a typed
transcript of the words spoken shall be submitted. A filing fee of
fifty dollars for each advertisement filed under this subsection
shall accompany each submission. Submission under this subsection
shall occur no later than the publication of the advertisement. If
an advisory opinion has been sought under subsection (a), section
six of this article no additional fee is required.
(d) The fair and accurate representation of a broadcast media
advertisement required in subsections (a) and (b), section five of this article shall include three copies of a video cassette (VHS),
digital video disc (DVD) or audio cassette plus three copies of a
typed transcript of the advertisement.
§30-2A-6. Advisory opinions.
(a) For any advertisement submitted as required by
subsection (b), section five of this article, a lawyer may request
an advisory opinion by the commission before the advertisement is
published. The request shall be in writing made at least thirty
days before the advertisement is published. The request shall be
accompanied by an administrative fee of fifty dollars, which is in
lieu of the fee required by subsection (b), section five of this
article. Within thirty days after the request is received, the
commission shall issue its advisory opinion as to the compliance of
the advertisement with the commission's rules.
(b) If a lawyer has received an advisory opinion that an
advertisement complies with the commission's rules, that lawyer may
not be disciplined for any use of that advertisement, except as
otherwise provided in subsection (f), section six of this article.
(c) If a lawyer has requested an advisory opinion and the
commission finds that the advertisement does not comply with the
requirements of the commission's rules, the commission, or its
designee, shall issue an advisory letter setting forth the factual
and legal basis for the opinion. The lawyer may submit a corrected
advertisement under subsection (b), section five of this article, that conforms to the advice in the advisory letter with no
additional fee required.
(d) If the commission determines that the commission's rules
have been violated by a lawyer, it shall determine whether the
violation can be dealt with administratively, or can be presumed to
be intentional. The commission may address administrative
violations. Intentional violations include, but are not limited to:
(i) Publishing the advertisement after receiving notice that the
advertisement is in violation of the commission's rules; (2) a
manifest indifference to the commission's rules; or (3) a pattern
of repeated disregard for these commission's rules. Intentional
violations may be referred to the Lawyer Disciplinary Board.
(e) If the commission has notified the lawyer that the
advertisement violated the commission's rules, and has further
determined that the publication of the advertisement may be
contrary to the public interest, the commission or its designee
shall notify the lawyer whose advertisement is under consideration
and the Lawyer Disciplinary Board. The Lawyer Disciplinary Board
may upon receiving the notification bring an action in compliance
with this article.
(6) If an advertisement is discovered to be false, misleading
or deceptive, or information provided to the commission in
connection with the submission is discovered to be false,
misleading or deceptive after the commission has issued its advisory opinion, it, or its designee, may notify the advertising
lawyer that all prior advisory opinions concerning the
advertisement are withdrawn and the advisory opinion is not a
defense to the subsequent use of the advertisement.
§30-2A-7. Review of filings.
For any advertisement on which an advisory opinion has not
been sought, the commission, or its designee, shall review the
filings for compliance with the commission's rules. If the
commission, or its designee, determines a violation of the
commission's rules has occurred, it may notify the advertising
attorney that a violation has occurred, or refer the matter to the
Lawyer Disciplinary Board.
§30-2A-8. Open records.
The records of the commission shall be available for
inspection and copying at the offices of the court at reasonable
times and upon reasonable notice. Any expense incurred shall be
borne by the requesting party.
§30-2A-9. Direct contact with prospective clients.
(a) A lawyer may not directly or indirectly through another
person, in-person or by live telephone, initiate contact or solicit
professional employment from a prospective client with whom the
lawyer has no family or direct prior professional relationship.
This article does not prevent discussions of employment arising out
of personal appearances at lectures and seminars by a lawyer which result in inquiries from prospective clients or inquiries initiated
by persons who may become prospective clients at the time of any
other incidental contact not designed or intended by the lawyer to
solicit employment.
(b) A lawyer may not solicit professional employment from a
prospective client even when not otherwise prohibited by subsection
(a) of this section if:
(1) The prospective client has made known to the lawyer a
desire not to be solicited by the lawyer; or
(2) The solicitation involves coercion, duress or harassment.
(c) Every written, recorded or electronic communication from
a lawyer soliciting professional employment from a prospective
client known or reasonably believed to be in need of legal services
in a particular matter, and with whom the lawyer has no family or
prior professional relationship, shall conform to section eleven of
this article. In addition, each written, recorded or electronic
communication must contain the words "THIS IS AN ADVERTISEMENT" in
all capital letters and prominently displayed in type at least as
large as the type in the body of the communication. Further, in
written, recorded or electronic communications, the envelope,
document or electronic device in which such communication is
transmitted shall contain the word "ADVERTISEMENT" in all capital
letters, and in type at least as large as the name of the addressee
on the same side of the envelope, document or electronic communication upon which the lawyer's name and/or address appears.
In the event of recorded telephone or radio communication, the
speaker must first state the language "THE FOLLOWING IS AN
ADVERTISEMENT" and shall further state at the end of the
communication the language "THIS RECORDED TELEPHONE CALL/RADIO
ANNOUNCEMENT HAS BEEN AN ADVERTISEMENT."
§30-2A-10. Waiver and forfeiture of fees for prohibited
solicitation.
If a lawyer illegally or unethically solicited a client for
which compensation is paid or payable, all fees arising from such
transaction shall be deemed waived and forfeited and shall be
returned to the client. A civil action for recovery of the fees
may be brought in a court of competent jurisdiction.
§30-2A-11. Communications concerning a lawyer's service.
A lawyer may not make a false, deceptive or misleading
communication about the lawyer or the lawyer's service. A
communication is false, deceptive or misleading if it:
(1) Contains a material misrepresentation of fact or law, or
omits a fact necessary to make the statement considered as a whole
not materially misleading;
(2) Is likely to create an unjustified expectation about
results the lawyer can achieve, or states or implies that the
lawyer can achieve results by means that violate the rules of
professional conduct or other law; or
(3) Compares the lawyer's services with other lawyers'
services, unless the comparison can be factually substantiated.
§30-2A-12. Advertising.
(a) A lawyer may advertise legal services through
communications in compliance with this article.
(b) A lawyer may not give anything of value to a non-lawyer
for recommending the lawyer's services, except that a lawyer may
pay the reasonable cost of advertising or communication permitted
by this article.
(c) Any communication made pursuant to this article shall
include the name of at least one lawyer licensed in West Virginia,
or law firm, any of whose members are licensed in West Virginia,
responsible for its contents.
(d) Communication by a lawyer with a person or entity with
whom that lawyer has a family or prior professional relationship or
in response to an inquiry from any person or entity seeking
information, shall be exempt from the provisions of this article,
with the exception of section eleven of this article.
(e) If a lawyer or a law firm advertises legal services and a
lawyer's name or image is used to present the advertisement, the
lawyer must be the lawyer who will actually perform the service
advertised unless the advertisement prominently discloses that the
service may be performed by other lawyers.
§30-2A-13. Identification of advertisements.
The commission may require the statement "THIS IS AN
ADVERTISEMENT" for any advertisement that may not be perceived as
a quest for clients because of the format, manner of presentation
or medium. If the statement is required, it shall be spoken in all
audio advertisements at the end of the advertisements and in all
other advertisements, shall be in color and size print equal to the
lawyer's or firm's name and visually present for as long as the
lawyer's or firm's name.
§30-2A-14. Communication of fields of practice.
A lawyer may communicate the fact that the lawyer does or does
not practice in particular fields of law. A lawyer who
concentrates in, limits his or her practice to, or wishes to
announce a willingness to accept cases in a particular field may so
advertise or publicly state in any manner otherwise permitted by
this article. Any such advertisement or statement shall be
strictly factual and may not contain any form of the words
"certified," "specialist," "expert" or "authority." A lawyer may
not state or imply that the lawyer is a specialist except as
follows:
(1) A lawyer admitted to engage in patent practice before the
United States Patent and Trademark Office may use the designation
"Patent Lawyer" or a substantially similar designation.
(2) A lawyer certified by an appropriate governmental agency
in admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation.
(3) A lawyer may communicate the fact that he or she has
achieved a national certificate by an organization qualifying under
Peel v. Attorney Registration and Disciplinary Commission of
Illinois, 110 S.Ct. 2281 (1990), by clearly identifying the
certification and the organization that has conferred the
distinction, and the communication may occur only for so long as
the lawyer remains so certified and in good standing with the
organization.
§30-2A-15. Firm names and letterheads.
(1) A lawyer may not use a firm name, letterhead or other
professional designation that violates section eleven of this
article.
(2) A law firm with offices in more than one jurisdiction may
use the same name in each jurisdiction, but identification of the
lawyers in an office of the firm shall indicate the jurisdictional
limitations on those not licensed to practice in the jurisdiction
where the office is located.
(3) The name of a lawyer holding a public office may not be
used in the name of a law firm, or in communications on its behalf,
during any period in which the lawyer is not actively and regularly
practicing with the firm.
(4) Lawyers may state or imply that they practice in a legal
entity only if that is the fact.
NOTE: The purpose of this bill is to
provide a mechanism to
regulate the advertising of legal services.
This article is new; therefore, strike-throughs and
underscoring have been omitted.