« Second Department--Defamation Is As Defamation Does | Main | The New York Minute »

March 08, 2007

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d834516c2469e200d83465084469e2

Listed below are links to weblogs that reference Would Responding To a Blog Commenter Who Is Seeking a Lawyer Constitute "Solicitation" Under the New York Lawyer Advertising Rules?:

» What constitutes solicitation under the new advertising rules in New York? from Legal Ease Blog
Nicole Black, author of the Sui Generis blog, has posted on a twist on the new rules regarding 'solicitation' in New York: a reader posted a comment on her blog, need a criminal lawyer prferabbly a women nyc vicinity. That [Read More]

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Allison Shields

As you said, it's a grey area in the rules, and this particular case is especially difficult because of the manner in which the 'request' was received. Although you indicate that I think it *is* solicitation if an attorney (other than you) contacts the commenter directly, my original response to your question was that I thought it was an interesting question
because the rules aren't clear - it's difficult to ascertain who she thought she was directing her request to and what she was expecting from it.

And I think it's important to explore these issues, and hopefully clarify and
refine the rules.

You indicate in your post that this person couldn't have been thinking of retaining you, because your blog clearly indicates what you do, and because the person left a comment, rather than calling or emailing you. But just
because someone posts a comment on a blog doesn't mean that they've read the blog, the individual post, the 'about' page or anything else, so I'm not sure that we can assume that they 'know' anything - that they know where you
practice or what you do or that your blog caters to other lawyers.

It's quite possible that she did a search for 'women lawyers' and your blog post showed up because you were discussing women and law firms.

But even if you are correct, although she may not have been seeking to hire you as her criminal lawyer, she may have been seeking information or contacts from you - as opposed to seeking to be contacted directly by any
attorney that read her post.

What if someone approached you *in person* and said, "I need a female
criminal attorney in the NYC vicinity." If that person isn't asking if *you* can represent them, they may be asking you for some people that they can
contact, or asking for your opinion, or to direct them to someone or some place that they can find what they're looking for. I don't think the question, in and of itself, would be considered a request for other criminal attorneys to contact her (even if they overheard you speaking with her, or she asked you within a group of people, some of whom were criminal attorneys).

If you were speaking with this individual in person, I'm sure that you would tell them that you don't do that kind of work, and you'd either tell them that you could provide some contact information for lawyers that are in that line of work and/or you would ask for her permission to reach out to your network and have lawyers that met with her criteria contact her. In that case, she would have specifically requested to receive information from
other lawyers, and it would be clearer (at least to me) that the
communication was not considered a 'solicitation' under the new rules.

I realize that this situation is different, since the comment was posted 'publicly' on your blog, but there's no way of knowing whether your commenter understood that. We have no way of knowing what their knowledge of
blogs or the comment process is.

This person may not have realized that their comment would be posted on your blog for everyone to see. It may have been their way of asking you for your opinion or suggestions, rather than a
request for other lawyers to contact her directly.

You also indicate that this person couldn't possibly be seeking information from you, as opposed to from your readers, since your blog indicates that you are in Rochester, which isn't anywhere near New York City. But you
assume, once again, that 'everyone knows' that. It's easy enough to find that out if you don't know it, but not everyone is going to do that research. Your commenter may have been out of state, and may not be familiar with NY geography. It isn't necessarily unreasonable to think that you might know of some criminal lawyers in the NYC area.

Although the solicitation rules exclude "a proposal or other writing prepared and delivered in response to a specific request of a prospective client," the rules don't define what 'specific request' means. Does a 'specific request' have to be targeted to a particular lawyer or group of
lawyers? Does the prospective client need to be aware that their 'request' is likely to induce attorneys that they don't know to contact them?

I'm sure this is just one of the many, many issues that will arise with the new rules.


Allison C. Shields, Esq.
Allison@LegalEaseConsulting.com
www.LawyerMeltdown.com
www.LegalEaseConsulting.com (blog)

NBlack

Thanks for your comment Allison.

You raise some good issues. And, while I agree that we have no idea what the original commenter's intent (or knowledge of blogs, my practice, my location, etc.) was, we can examine the content of her post and reasonably surmise what she was seeking to do by posting on my blog.

She stated (and I say "she" based on the feminine name contained in her email address):

"need a criminal lawyer prferabbly a women nyc vicinity"

She didn't type "I'm looking for a female lawyer in NYC--can you help?"

or

"Are you located near NYC? Can you represent me or recommend someone who can?"

or

"Would you please call me if you can represent me in NYC"

or anything remotely like that that would indicate that she was seeking to communicate with the author of the post that she commented upon.

Her comment was apparently not addressed to any particular person--least of all me. I think that it's pretty clear that she was directing her request toward those who read my blog.

So, I guess we'll just have to agree to disagree, since, as I've said before, reasonable minds can differ, and they do in this case.

That being said, I do agree that the term "specific request" is yet another example of vagueness in the rules that makes them extremely difficult to apply in "real life".

The comments to this entry are closed.

My Photo

About This Blog

Sui Generis Partner

Other Sui Generis Sponsors





Receive Updates Via Email

disclaimer

  • This site is intended purely as a resource guide for educational and informational purposes and is not intended to provide specific legal advice. This site should not be used as a substitute for competent legal advice from a professional attorney in your state. The use and receipt of the information offered on this site is not intended to create, nor does it create, an attorney-client relationship.

    Please feel free to contact me via e-mail or otherwise. However, please be advised that an attorney-client relationship is not created through the act of sending electronic mail to me.

    The comments on this blog are solely the opinions of the individuals leaving them. In no way does Legal Antics or Nicole L. Black endorse, condone, agree with, sponsor, etc. these comments.

    Further, any information provided on this blog or in the comments should be taken at your own risk.