Lawyer Advertising--The Great Debate

This week's Legal Currents column, which is published in The Daily Record, is entitled "Lawyer Advertising--The Great Debate."  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

******
Lawyer Advertising--The Great Debate

“The good lawyer is the great salesman.”

                                         — Janet Reno

Advocacy is one of the greatest skills a lawyer can possess.

Attorneys win cases by successfully selling their client’s position to a judge or jury.

Of course, it’s somewhat difficult to advocate on behalf of a client if you don’t have one in the first place. That’s where lawyer advertising comes in.

In recent years, lawyers have utilized television, radio, print and the Internet to advertise their services. Some of their campaigns have been, in the eyes of many, less than tasteful. Other pervasive and quite successful advertising campaigns, while arguably less offensive, have nevertheless been viewed as problematic by some members of the bar.

As a result, in July 2006, revisions to the disciplinary rules governing lawyer advertising in New York  were proposed. After an extended comment period, revised rules were enacted in February that severely limited lawyers’ ability to advertise their services in our state. Reactions were mixed, with a number of bar associations supporting the new rules and a handful of lawyers’ associations and some Downstate bar associations opposing the rules.

Shortly after the new rules were enacted, a federal lawsuit challenging certain provisions of the rules was filed with the U.S. District Court for the Northern District of New York on behalf of Public Citizen, a public interest group and an Upstate New York law firm, Alexander and Catalano, LLC.

Last week, Judge Scullin issued a decision in that case enjoining the enforcement of certain provisions of the new rules and declaring them to be unconstitutional, including the ban on endorsements/testimonials from current clients [DR 2-101(C)(1)], the portrayal in advertise- ments of judges, fictitious law firms and ficti- tious names [DR 2-101(C)(3)], the use of tech- niques irrelevant to selection of an attorney [DR 2-101(C)(5)], the use of nicknames, monikers or mottos that imply an ability to achieve results [DR 2-101(C)(7)] and the ban on the use of pop- up ads on the Internet [DR 2-102(G)(1)].

Judge Scullin likewise upheld the constitutionality of other challenged provisions, including those that established domain name limita- tions for Web sites [DR 2-103(G)] and the moratoriums on contacting victims [DR 2- 102(E)] and [DR 7-111].

His ruling also clarified that the new rules did not apply to non-commercial communications such as those made by non-profit legal organizations such as the plaintiff, Public Citizen.

In footnote 20 of his decision, Judge Scullin adeptly summarized the sentiments of many regarding the vexing issue of attorney advertising: “(T)he court notes that it is altogether appropriate for the Appellate Division of the State of New York, having been charged by law with the responsibility of overseeing the professional conduct of attorneys admitted to practice before the courts of New York, to be concerned with the issue of attorney advertising. Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this prob- lem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished. Although the court finds it commendable that the Appellate Division of the State of New York and the disciplinary committees that function on its behalf pursue ways to regulate the manner and means by which attorneys who choose to advertise may do so, they must be mindful of the protections such advertising has been afforded and take the necessary steps to see that the regulation of such advertising is accomplished in a manner con- sistent with established First Amendment jurisprudence.”

Alas, Judge Scullin’s word on this issue is not destined to be the last. The state recently announced its intention to file an appeal with the U.S. Court of Appeals for the Second Circuit.

And so the great debate rages on: To what extent should attorney advertising be regulated?

Realistically, who benefits from limitations on attorney advertising? Legal consumers? Other lawyers? Who should be charged with determining which attorney ads are detri- mental to the profession when the concept of “tasteless,” much like pornography, is in the eye of the beholder? Should disciplinary rules be imposed that allow attorneys to utilize their finely honed advocacy skills for the benefit of all businesses but their own?  Should the First Amendment serve as a shield that permits lawyers to advertise in a way many feel demeans the profession?

There is one thing upon which we, as lawyers, can all agree: These are complex questions that defy simplistic answers. For this reason, a consensus among members of our profession is likely to elude us indefinitely. It doesn’t take a salesman to convince me of that.