Changes to lawyer ads go into effect in N.Y.

By Dick Dahl Staff writer

For years, motorists in the Albany, N.Y. area have grown accustomed to billboards extolling the virtues of a legal team called "The Heavy Hitters."

But as of Feb. 1, the "Heavy Hitters" will be history, victims of New York State's new rules governing lawyer advertising.

"The rules say you can't use nicknames or monikers that imply a result," explains Paul Harding, managing partner of Martin, Harding and Mazzotti, the Albany, N.Y. firm that created the billboards. "I don't know if 'Heavy Hitters' did that. But we decided to make the change anyway."

Harding and the other partners put their heads together and made a tactical decision: They yanked "Heavy Hitters" and are replacing it with a less flashy-sounding new entity, "Team 24/7."

"I think lawyer ads everywhere are going to be a little more bland now," Harding said.

But despite this, Harding, like many New York lawyers, is reasonably satisfied with the new rules because they're less restrictive than the original proposal, which drew broad criticism from across the state and beyond. (See "New York weighs tough new lawyer advertising rules," Lawyers USA, Aug. 14, 2006. Search words for Lawyers USA Archives: Dahl and advertising.)

Last summer, the presiding justices of the state's four appellate divisions released proposed rules after receiving recommendations from a New York State Bar Association committee that sought to improve the public image of lawyers.

Ordinarily, the justices simply impose new rules without seeking outside comment. But this time, they took the unusual step of creating a 90-day comment period. They were inundated with comments and criticisms, prompting them to extend the comment period and push back the effective date to Jan. 15, and finally to Feb. 1.

Apparently as a result of the heated response, the rules were revised to the current version, which most lawyers see as an improvement.

"The draconian language [is] gone," said Buffalo, N.Y. attorney Jeffrey M. Freedman. "I was very pleasantly surprised."

Freedman's firm runs TV ads in the Buffalo and Rochester areas and has employed a tag line, "We Get Results."

The original version of the rules specifically prohibited ads that "utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter," so Freedman thought that he'd have to get rid of the "results" language.

But now another section of the rules states that lawyers can use statements that are "reasonably likely to create an expectation about results the lawyer can achieve," so long as the ad passes muster in other areas, including a disclaimer that past results don't guarantee successful outcomes.

Freedman said he's been practicing law since 1980 and in his ads he boasts of his firm's track record in handling and winning cases. He thinks he may be able to continue to use "We Get Results," and he'll be contacting the state bar's Ethics Committee for guidance.

And even if "We Get Results" doesn't pass muster, he can always tweak it a bit.

"I don't think it's a big problem," he said. "I could probably change it to 'Get the Results You Deserve.'"

Improving lawyers' public image

A. Vincent Buzard, a partner at Harris Beach in Rochester, N.Y. and the immediate past president of the New York State Bar Association, created the task force that made the lawyer advertising recommendations.

The issue, as he sees it is "the public understanding of the legal profession. If we try to convince people that there's no litigation explosion in the state and try to remind people that without us there would be no system of justice, public understanding can be badly damaged if people are bombarded by advertisements that leave the impression that you can get something for nothing or that the legal system is a big lottery."

Although he's spoken in favor of tougher rules, Buzard said that he's satisfied with the current outcome.

"I think there was a terrific and very important process that was followed," he said. "Hopefully we've gone from being a distant follower to being a leader in the area."

Buzard said the toughest part of the new rules is in a section that lists the specific things that an advertisement cannot do. These include prohibitions on endorsements from current clients; the use of actors if they're not identified as such; techniques that are not relevant to the selection of counsel; and the use of nicknames, monikers, mottoes or trade names that imply an ability to obtain results.

Buzard pointed out that the rules identify things that are allowed, including testimony from former clients, statements comparing the lawyer's services with those of other lawyers, and use of "bona fide professional ratings," such as a listing in Super Lawyers Magazine, which submitted a comment to the justices.

The rules also contain a new "anti-runner" provision that prohibits both plaintiffs' and defense lawyers from soliciting people in personal-injury and wrongful-death cases for 30 days following the incident.

Even with that language, however, Syracuse, N.Y. lawyer Robert E. Lahm believes legislative action may be necessary to curb the practice.

"We may introduce a bill because this is one area that probably needs to have a little more teeth," said Lahm, who is president of the Academy of New York State Trial Lawyers, which was created three years ago to help improve the image of trial lawyers.

His overall assessment of the rules: "We're happy they went the way they did. But there may be issues that need to be taken up. I think we need to sit back and see how they shake out and how they're monitored and enforced by the appellate divisions. We need to give them a chance."

Regulating 'taste'?

Public Citizen, the Washington, D.C.-based consumer-right group, has been actively involved in the New York lawyer advertising debate, and a lawyer from that group, Greg Beck, said they may not be finished yet.

"A lot of things have been changed for the better, but there's a lot in there that's too restrictive," he said. "At this point, it looks like there will be a legal challenge."

Public Citizen joined with the American Civil Liberties Union and the New York Civil Liberties Union in filing a comment in November that criticized the proposed rules on constitutional grounds, and Beck said the new rules still restrict free speech too much.

"The state does have an interest in regulating deceptive advertising, but not taste," he said. "And the New York rules are an attempt to regulate taste.

"The Supreme Court has said that you can't regulate speech on the assumption that it's harmful," he continued. "Ads can be corny or silly, and some attorneys might think that they make the legal profession look bad. But you need evidence that these ads are harmful to people in some way."

Beck also charges that the rules discriminate against certain lawyers.

"Ultimately, the rules protect incumbent law firms," he said, "[because] the ones who need to advertise are newcomers and plaintiffs' lawyers."

In addition, claimed Beck, the anti-runner rule hurts nonprofit legal groups who work for victims of injustice. Under the rule, lawyers cannot approach victims of police brutality, for instance, until 30 days have passed.

Andrew Perlman, a professor who teaches legal ethics at Suffolk University Law School in Boston, also was critical of the 30-day provision because "there may be people who would value getting information from lawyers after an accident, so the rule interferes with a victim's ability to get that information and a lawyer's ability to communicate it."

Good news for bloggers

One of the most contentious aspects of the proposed rules revolved around Internet activity, including blogging, by lawyers.

But blogger Nicole Black, a lawyer in Syracuse, wrote in her Sui Generis blog that she was reasonably happy with the changes that had been made in the final rules. "My first thought was, 'Well, it could have been a lot worse.

"Clearly," she wrote, "the drafters listened to the complaints that the proposed definition [of advertising] was overly broad and would require lawyers to treat any communication, such as law journal articles on legal issues or e-mails to other lawyers regarding legal issues as an 'advertisement.'"

The proposed rules also said that copies of every advertisement and solicitation would have to be filed with the attorney disciplinary committees of judicial departments "at the time of the initial dissemination," and that labeling and notification requirements applied to "all computer-accessed information."

At the time, bloggers suggested that this seemed to require that they notify the court every time they made a blog entry - or even sent an e-mail.

However, the final rules have eliminated the filing requirement for everyone. The requirement that lawyers and law firms retain copies of all ads for three years after initial dissemination remains intact, but the retention period for "any advertisement contained in a computer-accessed communication" is now only one year.

The justices also cut bloggers and website operators some slack by requiring that they only preserve content for 90 days unless a site undergoes redesign or "extensive content change," which would require preservation at the time of the change.

There were other revisions. The justices jettisoned language that would have required lawyer advertising "be designed to educate the public to an awareness of legal needs and to provide information relevant to the selection of the most appropriate counsel."

In its place, however, they listed new specific prohibitions, including restrictions on testimonials, paid endorsements and the use of actors.

Get the rules

You can read or download the new rules in the "Important Documents" section of Lawyers USA's website:

http://www.lawyersweeklyusa.com/subscriber/treas.cfm

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com


The major changes in New York

New York has made significant revisions to the rules for lawyer advertising. The key changes include:

  A definition of "advertisement" that includes any communication made by a lawyer or law firm for the purpose of getting business. It does not include communication with existing clients or other lawyers.

  Limits on the uses of testimonials and dramatizations.

  A requirement that advertisements be labeled "attorney advertising."

  Prohibitions on solicitation in personal injury and wrongful-death cases for 30 days. This applies to all lawyers.

  A requirement that solicitations directed to pre-determined recipients disclose how the lawyer learned the recipient's identity and need for legal services.

Source: Synopsis of the significant amendments prepared by the New York State Bar Association. It is available in the "Important Documents" section of Lawyers USA's website:

http://www.lawyersweeklyusa.com/subscriber/treas.cfm

- Dick Dahl

 

 

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