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?

Comments

[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.
[email protected]
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".