December 2006

Executive Summary of the Nevada Lawyer Advertising Proposal 

By William C. Turner, Esq.,

As the State Bar of Nevada has been reporting to our membership, the disciplinary rules governing Lawyer Advertising have been under review since December 2004 when the Supreme Court of Nevada created the Study Committee on Lawyer Advertising (SCLA).

The subject of attorney advertising is both polarizing and universally vital to the bench and bar.  The need for clearer guidance has been of paramount importance to the Board, the Courts, and the SCLA. Whether an individual attorney chooses to advertise, the legal profession as a whole is impacted by attorney advertising as the public perception of the profession is so affected.  The goal of this initiative is to formulate rules that protect the public from false and misleading advertising while conserving First Amendment rights of advertising lawyers.  As can be seen from the disparity among other states’ rules, this is a balancing act that is subject to the fluidity of constitutional law, the need to protect the public, and the need for a structure which provides for uniform and effective enforcement of the rules.

Both the SCLA and the Board of Governors talked to scores of lawyers over the course of this initiative who sent the resounding message lawyers need succinct guidance in this area.  The chilling effect of unclear, complicated advertising rules is evident and warrants change.  

After a tremendous amount of unprecedented work and debate, on November 2, 2006, the Board of Governors adopted a lawyer advertising proposal which shall be filed with the Supreme Court of Nevada.  See N.R.A.D. 3.2.  The proposal in its entirety is available on the Bar’s website at www.nvbar.org[1] on the Lawyer Advertising page.  

The following executive summary is designed to complement the complete written proposal and supporting materials, which the Board encourages all members to review.  The court may hold a public hearing under NRAD 3.2.  Written comments will be accepted in care of K. Marzec at e-mail kristinam@nvbar.org, or in hard copy to the Las Vegas State Bar Offices.     

Executive Summary

Amend RPC 7.1 (Communications Concerning a Lawyer’s Services)  

   (1) Clarifies that specific results a lawyer can or has achieved are inherently misleading;

   (2) Per se ban on testimonials and endorsements lifted. 

Both changes are crafted to incorporate the ABA Model Rule standard that such communications are allowed, but are subject to regulation ensuring they are not false or misleading.  Bottom line: any testimonials, endorsements, or results communicated must have adequate disclaimers to overcome the potentially misleading content.

Amend RPC 7.2 (Advertising)

  (1) The “taste” language (paragraphs (e) and (f)) revoked;

  (2) Mandatory filing requirement (within 30 days of first dissemination, no fees), 

·         Statute of limitations for discipline review tolled if not filed;

  (3) Lawyers must prove-up statements in ads upon request;

  (4) Volunteer peer advisory committees for safe-harbor advance opinions.

It is critical to note this is a pure filing requirement only to facilitate uniform enforcement.   Nothing happens unless a potential violation is identified, which would then be referred by a staff administrator to Bar Counsel for review in the normal course under SCR 105. 

Misleading statements were identified as one of the most serious concerns in lawyer advertising, and a main impetus supporting peer review.  The safe harbor advisory panels are there for lawyers who desire a binding advance opinion before committing advertising dollars. The advance opinion process is entirely voluntary and independent of Bar Counsel.

Revoke and reconstitute parts of RPC 7.2A (Lawyer Services Information; the biographical data form)

All lawyers should have to provide certain information upon request to clients or prospective clients regarding qualifications.  Further, advertising lawyers should have to prove-up specific representations in advertisements to clients and the State Bar.  Parts of this rule have moved to  RPC 1.4 (Communication) and others to RPC 1.18 (Duties to prospective client) to require lawyers to provide certain general background information upon request of a client or prospective client to aid in the hiring selection process.   

Revoke the “limited practice” provisions from RPC 7.4

Limiting and regulating communication of fields of practice is unnecessary as long as those communications are true and not misleading.  Therefore, the limited practice section is removed. The provisions regarding communication of a specialty, which carries a public perception that warrants regulation, are retained.

No change recommended to RPC 7.3 (Communication with prospective clients) or 7.5 (Firm names)      

The Board of Governors and the SCLA each engaged in lengthy hearings and spirited debate on this initiative. Both worked hard to be responsive to the needs of our members and the public.  While it may be impossible to craft the perfect regulatory scheme for lawyer advertising addressing any given position, this collaborative proposal is the product of years of study and discussion with the best interests of the members and the public foremost.

Please remember these are proposals only, subject to de novo review and order of the Supreme Court of Nevada.

As SCLA Chair and a member of the Board of Governors, I have never in six years of service on the Board seen this level of discussion and concern dedicated to any other initiative.  Accordingly, I would like to personally thank each of the nineteen members of the SCLA, the Court, and the Board for their extraordinarily diligent efforts to bring this initiative to fruition. I would particularly like to thank Justice James Hardesty at the Supreme Court of Nevada for his insight and his continuing efforts to work with the Board and the Commission to bring out the best result for our Nevada Lawyers. 

William C. Turner is Chair of the Study Committee on Lawyer Advertising.  He can be reached at billtlaw@cox.net.  State Bar Staff paralegal Kristina Marzec, CLA, contributed to this article.