NY Lawyers Code of Professional Responsibility Updated Regarding Lawyer Advertising

As explained here at the NYSBA website, in November 3, 2007, the NYSBA House of Delegates voted to adopt revisions to the New York Lawyers Code of Professional Responsibility "which are intended to provide greater guidance to attorneys with respect to the attorney advertising rules adopted by the Appellate Division effective February 1, 2007."

The complete, revised code can be accessed here.  The revised sections dealing with attorney advertising can be found on pages 16-22.

The following are provisions that I found to be particularly interesting, in part because I believe that some of the provisions appear to be in direct response to issues that I've raised on this blog. 

Emphasis in the provisions was added by me, as were relevant past posts from my blog are listed in parentheses with red writing after some provisions:

• EC 2-5  The "attorney advertising" label serves to dispel any confusion or concern that might be created when nonlawyers receive letters or emails from lawyers.  The label is not necessary for advertising in newspapers or on television, or similar communications that are self-evidently advertisements, such as billboards or press releases transmitted to news outlets, and as to which there is no risk of such confusion or concern.  An advertisement in a newspaper may nevertheless require the label if it is a paid article about a law firm adjacent to other articles written by the newspaper where there is a reasonable risk that readers will confuse the two.  The ultimate purpose of the label is to inform readers where they might otherwise be confused (p. 16). (See this prior post)

• EC 2-6

a) Not all communications made by lawyers about the lawyer or the law firm’s services are advertising...non-commercial communications motivated by a not-for-profit organization’s interest in political expression and association are generally not considered advertising.

(b)...Likewise, communications to other lawyers, including those made in bar association publications and other publications targeted primarily to lawyers, are excluded from the special rules governing lawyer advertising even if their purpose is the retention of the lawyer or law firm.   

c) Topical newsletters, client alerts, or blogs intended to educate recipients about new developments in the law are generally not considered advertising.  However a newsletter, client alert, or blog that provides information or news primarily about the lawyer or law firm (e.g., the lawyer or law firm’s cases, personnel, clients or achievements) generally would be considered advertising... (See this prior post).

d) Communications such as proposed retainer agreements or ordinary correspondence with a prospective client who has expressed interest in, and requested information about, a lawyer’s services are not advertising.  Accordingly, the special restrictions on advertising and solicitation would not apply to a lawyer’s response to a prospective client who has asked the lawyer to outline his or her qualifications to undertake a proposed retention or the terms of a potential retention. (See this prior post).

f) Some communications by a law firm that may constitute marketing or branding are not necessarily advertisements.  For example, pencils, legal pads, greeting cards, coffee mugs, T-shirts or the like with the law firm name, logo, and contact information printed on them do not constitute "advertisements" within the definition if their primary purpose is general awareness and branding, rather than the retention of the law firm for a particular matter.

 

• EC 2-7

b) A lawyer’s participation in an educational program is ordinarily not considered to be advertising because its primary purpose is to educate and inform rather than to attract clients.  Such a program might be considered to be advertising if, in addition to its educational component, participants or recipients are expressly encouraged to hire the lawyer or law firm.

c) A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for non-lawyers should caution them not to attempt to solve individual problems on the basis of the information contained therein.   

• EC 2-11  An advertisement may include information regarding bona fide professional ratings by referring to the rating service and how it has rated the lawyer, provided that the advertisement contains the “past results” disclaimer as required by DR 2-101(D)-(E).  However, a rating is not “bona fide” unless it is unbiased and nondiscriminatory.  Thus, it must evaluate lawyers based on objective criteria or legitimate peer review in a manner unbiased by the rating service’s economic interests (such as payment to the rating service by the rated lawyer) and not subject to improper influence by lawyers who are being evaluated.  Further, the rating service must fairly consider all lawyers within the pool of those who are purported to be covered.  For example, a rating service that purports to evaluate all lawyers practicing in a particular geographic area or in a particular area of practice or of a particular age must apply its criteria to all lawyers within that geographic area, practice area, or age group.

• EC 2-15  Meta-tags are hidden computer software codes that direct certain internet search engines to codes that direct certain internet search engines to the web site of a lawyer or law firm.  For example, if a lawyer places the meta-tag “NY personal injury specialist” on the lawyer’s web site, then a person who enters the search term “personal injury specialist” into a search engine will be directed to that lawyer’s web page.  That particular meta-tag is prohibited because DR 2-105(A) generally prohibits the use of the word “specialist.”  However, a lawyer may use an advertisement employing meta-tags or other hidden computer codes that, if displayed, would not violate a disciplinary rule.

• EC 2-18 A “solicitation” means any advertisement:

a) which is initiated by a lawyer or law firm (as opposed to a communication made in response to an inquiry initiated by a potential client);

b) with a primary purpose of persuading recipients to retain the lawyer or law firm (as opposed to providing educational information about the law) (see EC 2-6(c)); 

c) which has as a significant motive for the lawyer to make money (as opposed to a public interest lawyer offering pro bono services); and

d) which is directed to or targeted at a specific recipient or group of recipients, or their family members or legal representatives.    Any advertisement that meets all four of these criteria is a solicitation, and is governed not only by the rules that govern all advertisements but also by special rules governing solicitation.   

• EC 2-21  All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.  Solicitations by a lawyer admitted in New York directed or targeted to a recipient or recipients outside of New York are not subject to the filing and related requirements set out in DR 2-103(C).  Whether such solicitations are subject to the special 30 day (or 15 day) rule depends on the application of DR 1-105. (See this prior post).

• EC 2-23

a) Where these Disciplinary Rules require that a lawyer retain a copy of an advertisement or file a copy of a solicitation or other information, that obligation may be satisfied by any of the following items:  original records, photocopies, microfilm, optical imaging, and any other medium that preserves an image of the document that cannot be altered without detection. (See this prior post).

b) Law firms that have no office they consider their principal office may comply with DR 2- 101(H) by listing one or more offices where a substantial amount of the law firm's work is performed.  (See this prior post).