Update: New York Lawyer Advertising Rules Lawsuit Filed and More Questions Raised at Seminar

The lawsuit challenging the newly promulgated New York lawyer advertising rules mentioned in my prior post has been filed in the United States District Court for the Northern District of New York.  Greg Beck of the Consumer Law and Policy Blog posted about the lawsuit here.  A press release regarding the lawsuit can be found here and the Complaint can be found here.

The Complaint essentially alleges that the new rules are too vague and restrict the right to free speech in violation of the First Amendment.

Greg Beck advised me via email that the NYCLU is not involved in this lawsuit and that the information to that effect contained in the Democrat and Chronicle article mentioned in my prior post is incorrect.

Also, I attended a seminar today regarding the new rules and a number of interesting issues were raised by attendees.  It was sponsored by the Advertising Review and Ethics Committees of the Monroe County Bar Association.  The member of the panel were: 

• Kathleen Baxter, Senior Director for Legal and Governmental Affairs of the NYSBA
• Daniel Drake, Principal Counsel for the Seventh Judicial Distrct Attorney Grievance Committee, Fourth Department
• James Moore, a partner at Harter, Secrest & Emery LLP
• Thomas Smith, a partner at Harter, Secrest & Emery, LLP
• Eugene Welch, a partner at Harris, Chesworth, O'Brien, Johnstone, Welch & Leone, LLP

First, it's unclear whether the the requirement to label all communications that fall under the definition of "advertisement" as "attorney advertisements" is required for 1) business cards 2) billboards and 3) responsive emails to potential clients who initiated communications with the attorney.

(Continue reading after the jump)

A business card is arguably a communication made by a lawyer, the primary purpose of which is retention of the lawyer, and thus falls within the ambit of the definition of "advertising" (1200.1(k)). And, the provisions of 1200.7 that allow for the use of business cards specifically require compliance with 1200.6. The panel members didn't believe that the intent of the rules was to require that business cards be labeled with the words "attorney advertising", but nevertheless, it seems to me (and to a number of the attendees), that the plain language of the rules might very well require it.

In regard to billboards, 1200.6(f) provides that "every advertisement other than those appearing in a radio or television advertisement or in a directory, newspaper, magazine or other periodical...shall be labeled 'Attorney Advertising'..."   

Billboards are not included in the exception to the rule and thus the plain language of the rule would seem to require that billboards be labeled "attorney advertising".  Nevertheless, one of the panel members opined that billboards probably would not need to be labeled in that way since they are obviously advertising.

The panel also seemed to agree that the intent of the rules was not to require that the words "attorney advertising" be included in a responsive email from an attorney to a potential client in the situation where a potential client sends an email to an attorney inquiring as to the cost of services, etc. and the lawyer responds to that email.

The plain language of 1200.1(k) seems to indicate, to me at least, that the responsive email is an advertisement--it is a private communication made by an attorney about that lawyer's services, the primary intention of which is retention of the lawyer.  And, the communication is not one made to another lawyer or an existing client.  And, to the best of my knowledge, no other provision of the rules provides an exception for an email of this type.  Thus, although the panel seemed to think that the intent of the rules was not to include an email of this type under the umbrella of "advertising", the language of the rules seems to imply otherwise.

And, two other points of interest.

First, for it was suggested that electronic retention of web based communications such as web sites and blogs will be sufficient to meet the requirements of 1200.6(k), as opposed to printed copies.  The basis for that assertion is the fact that DR 9-102(d)(10), which provides for record keeping in relation to client funds, allows for "copies" to be kept in electronic form.

Finally, in regard to 1200.41-a, which prohibits unsolicited communications with those involved in incidents involving personal injury or death within 30 days of the date of the accident, it was stressed that you can communicate with those involved in the accident--you simply cannot initiate the communication.  In other words, if the client calls you seeking representation, communication with that person is acceptable as long as the person is legally competent.

All in all, it was an interesting afternoon, and many interesting issues were discussed

Comments

[Randy L. Braun]

Dear Nicole:

I've recently discovered your blog and wish to thank you for a very informative and enjoyable read.

I'd like to comment with respect to the issue of whether business cards constitute attorney advertising. IMHO, I don't think that they do in most circumstances.

Under the new rules, an "advertisement" is defined, in pertinent part, as "any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services." As I read it, if a business card contains the lawyer's name, address and other contact information (e.g., fax and phone), it falls outside of this definition since such information is not about the lawyer or law firm's "services." If, on the other hand, the business card contains additional information such as a slogan, hyperbole or other puffery, it could be construed as an advertisement. I think the distinction between these two examples is an important one in view of the intent behind the new rules which is, as stated in the press release appearing on the NYSBA website, "to protect consumers from inappropriate, misleading, or overly-aggressive advertisements."

In either event, it's a slippery slope on which we, as lawyers, must now tread even more carefully than before.