Senate Bill No. 563

Senate Bill No. 563

(By Senators Chafin and Deem)

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[Introduced February 14, 2006; referred to the Committeeon 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.