Would Responding To a Blog Commenter Who Is Seeking a Lawyer Constitute "Solicitation" Under the New York Lawyer Advertising Rules?
A few days ago, a woman left the following comment to this Sui Generis post:
need a criminal lawyer prferabbly a women nyc vicinity
This comment made me wonder about an intriguing question: If an attorney who reads my blog responds to her comment by emailing her, has said attorney engaged in "solicitation" as defined by the newly promulgated New York lawyer advertising rules?
In my opinion, the answer is "no".
1200.(b) provides that:
For purposes of this section “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.
As I interpret this rule, an email response to the above comment is excluded from the definition of "solicitation" since it would constitute a writing prepared in response to a specific request of a respective client.
I believe that my interpretation is further supported by the fact that the comment was clearly not directed toward me since my web site and "about" page clearly indicate that I only I do work for lawyers and don't represent individual legal consumers. And, both my web site and "about" page indicate that I'm located in Rochester, which, as we all know, is not located anywhere near New York City.
Furthermore, if she'd wanted to try to retain me, she could have either directed the comment specifically to me or sent me an email. For those reasons, I think the comment was her attempt to obtain a New York lawyer, not necessarily this New York lawyer. In other words, she was attempting to contact any New York City criminal defense lawyer who happened to be a woman and happened to read my blog. I think that this theory is further supported by the fact that my blog is a New York law blog which is frequented by many New York lawyers. So, I'd argue that a response to that inquiry would not be solicitation.
But, another New York blogger, Allison Shields of the Legal Ease blog, whose opinion I highly respect and who has also blogged quite a bit about the new rules, disagrees with me. In her opinion, the comment was directed toward me and not any other attorney, and thus anyone responding to the request, aside from me, would be engaging in solicitation under the new rules thus triggering the filing requirements set forth in 1200.8.
So, what do you think? Would a response to that comment by an attorney other than myself constitute solicitation?