By Van Hardenbergh

“Thou shalt not place thy license at risk” is the absolute First Commandment of direct mail for lawyers. As Officers of the Court, we have the distinct privilege to practice in a profession that is elite, discriminating, and selective. However, the practice of law is a jealous mistress, and she tolerates few mistakes, especially when it comes to ethics. One of the first things that will cause problems in a direct mail campaign is failure to comply with Rule 7.3 of the Rules of Professional Conduct, which outlines the do’s and don’ts of lawyer advertising.

In July 2013 the Virginia Supreme Court adopted changes in the rules. However, many lawyers are still adhering to the old rules, which can have a negative impact on their bottom line because doing so tends to hurt their response rates. To their credit, Bar Counsel approved a measured relaxation of the rules pertaining to the dreaded, demoralizing, and debilitating “Advertising Material” disclaimer, and the Supreme Court adopted the proposed change.

Previously, any direct mail solicitation had to include this language in uppercase letters “in the lower left hand corner of the address portion of the communication in type size at least equal to the largest type used on the communication and also on the front of the first page of the communication in type size at least equal to the largest type used on the page.” The new requirements were tightened in some respects and relaxed in others, but there is some room for opportunity.

Under the new rules, the “Advertising Material” requirement has essentially turned into an “Advertising Material Tax” against envelope manufacturers of the world. The new rule states: “Every written, recorded or electronic communication from a lawyer soliciting professional employment from a potential client known to be in need of legal services in a particular matter shall conspicuously display the words “ADVERTISING MATERIAL” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication:

1. is a lawyer; or
2. has a familial, personal, or prior professional
relationship with the lawyer; or
3. is one who has had prior contact with the lawyer.

This guidance is mandatory, using the word “shall” to ensure that it is understood that these regulations are not in any way negotiable. Considering the monopoly that we attorneys have on the practice of law, the very high barriers to entry, and the ability of direct mail to reach clients who need our help, these regulations are a small price to pay.

Looking closely at the language of the new rule, much has changed. The technical font requirements have been discarded (although they live on in the form of a restriction on reporting case results and statistical analysis). You no longer have to match the font size in the disclaimer with that used in your letterhead, the letter headline, or text on the first page.

But really, the most amazing thing about the new rules is the fact that “Advertising Material” is no longer required in all mailed solicitations to prospective clients! Yes, it is true, and the quirk in this new change to the rules invites speculation as to how long it will take for the nervous nanny of a disclaimer to breathe its last gasp and bring Virginia’s attorney advertising regulations into the 19th or perhaps even the 20th century of marketing science. The rule specifically states that it must appear “on the outside envelope, if any” (emphasis added). But not all communications to prospective clients have an envelope, as the rule acknowledges with these two little words, recognizing that some mailings have none!

Increasingly, lawyers are sending postcards to reduce their postage expenses. With the recent amendment to the rules, such mailings will no longer have to to bear the words “Advertising Material.” Also, the location and font size of the disclaimer are no longer regulated for traditional direct mail letters sent in an envelope. The disclaimer may be printed on any part of the envelope, with no requirement as to font, type size or case, placement, etc. This is a great improvement for Virginia’s lawyers. If you have any questions about the ethical rules of direct mail, feel free to contact me at van@vandefense.com.