Is the VSB Wasting Your Time With its "Routine Lawyer Advertising Ethics"

Interesting news from the Virginia State Bar - a more "procactive" view towards lawyer advertising. Seems that the VSB is now requiring lawyers to respond to VSB requests for advertising information. Lawyers who recieve the requests for information are having to carve out time out of their day, time perhaps better spent being a producer, to respond to requests.Some lawyers apparently are even hiring lawyers to help them respond. (After all, a popular ethics speaker's mantra is "if you get a letter from the VSB ethics department, call a lawyer immediately, do NOT try to do this on your own!")

What what is triggering the requests?

An avalance of consumer complaints about lawyer advertising?

Nope, not according to VSB Ethics Counsel James M. McCauley. Accoring to a blog article on lawyer advertising ethics posted by Lawyers Weekly, Mr. McCauley is quoted as saying that "complaints, rarely come from the public. Nine out of ten times, it’s not a consumer or client, but a lawyer in direct competition, who makes a complaint about lawyer advertising."

Despite this non-tsunami of consumer complaints Lawyer Weekly reports that bar has stepped up its mailing of advertising request letters in the last two fiscal years and in FY 2009 mailed soe 259 requests to lawyers.

What triggers the requests if not consumer complaints and competitor whining? Apparently "randomness."
According to the blog post (and, presumably an article in next week's print edition of the paper) "many lawyers who have never bought a television or print advertisement are being asked to submit advertising documents for review by the VSB. Such a 'routine' review covers a lawyer’s Internet presence as well as more traditional forms of advertising, such as television and phone directories, so nearly every lawyer today is subject to some level of scrutiny."

Interesting. One the one hand Virginia does have a pretty balanced view of the First Amendment and the commercial speech cases when it comes to lawyer advertising. (Full disclosure, I've gotten one or two of those letters myself and found Mr. McCauley and his staff a pleasure to work with an willing to listen to my point of view.) There are plenty of states that still impose a draconian anti-First Amendment censorship standard, requiring, for example, pre-approval of newsletters BEFORE they are mailed and YouTube posts before they are uploaded. I'm glad I don't practice in those states and wish more lawyers would just sue to enforce their rights. (Hey you folks in Texas and Kentucky, take them on!)

On the other hand, I can't see a problem so great that the bar actually pays (I guess we pay by our mandatory dues) for a staff person to troll websites and create randomly generated letters (if I'm reading the blog post right) that create work and, by the use of force, steal time from lawyers. That makes little sense to me.

I'm curious as to what you think. If you get an advertising letter from the bar is there, as Mr. McCauley is quoted as saying "no reason to be fearful about the process?" Does the bar even have the authority to conduct, as they cal l it, a "routine advertising audit" that forces a response from a lawyer. Should lawyers against whom no complaint has been made and no violation even suspected, be forced to call "time out" from their clients, their families or whatever the heck else they would rather be doing with their time to respond?

Maybe the balance is just right? What do you think? You can post your thoughts about random advertising audits here.

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