Sui Generis--a New York law blog

New York Bar on Whether Lawyer YouTube Videos Constitute Advertising

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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New York Bar on Whether Lawyer YouTube Videos Constitute Advertising

Lawyers have been advertising online for more than two decades. As technology evolves, the methods of online advertising also change. New social media platforms are launched, and the features of existing sites are regularly modified. 

Because the online world is ever-changing, it can sometimes be difficult for lawyers to navigate the ethical issues that arise when engaging online, especially when it comes to attorney advertising. Some interactions can be deemed personal, while others are professional. And, not all professional interactions necessarily equate to attorney advertising. 

As a result, it can sometimes be difficult to determine whether attorney advertising rules apply. Fortunately, bar association ethics committees regularly issue opinions as to which online interactions constitute attorney advertising and thus require the appropriate disclaimers.

For example, last week, the New York State Bar Association Committee on Professional Ethics handed down Ethics Opinion 1251, which focused on whether educational YouTube videos released by lawyers constitute lawyer advertising.

At the outset, the Committee confirmed that lawyers are permitted to educate the public on legal topics, and that, generally speaking, doing so does not constitute attorney advertising: “It is not unethical for a lawyer to write articles, give lectures, or write a blog about topics of general or specific interest, including the law.”

The Committee then turned to educational YouTube videos, likening them to law firm newsletters. It explained that the application of a three-prong test previously established to determine whether newsletters constituted advertising was appropriate in the context of analyzing the content of attorney YouTube videos. That test required an assessment of “the content of the communication, the intent (purpose) of the communication, and the targeted audience of the communication.” 

Next, the Committee provided examples of educational YouTube content that would not require an attorney advertising disclaimer: “To the extent that the YouTube videos provide general legal information for the public about ‘being a lawyer in the U.S.’ and ‘work-life balance,’ the videos would not constitute advertising.”

In comparison, as the Committee explained, videos focused on promotional news about the lawyer or law firm fall under the ambit of lawyer advertising: “To the extent, however, that the YouTube videos include information and news about the lawyer and her law practice for the primary purpose of retention of the inquirer, they would constitute advertising.”

The Committee also provided clarification regarding other ethical issues that may arise even when the YouTube channel and videos do not amount to attorney advertising. 

First, the Committee advised that “publishing and linking the inquirer’s name and contact information with the channel will not, in and of itself, push the content of the videos across the line into advertising.”

Second, the Committee advised lawyers to tread with caution when responding to any comments to the videos and provide only general information rather than individual legal advice in order to avoid the risk of inadvertently creating an attorney-client relationship.

Finally, the remaining issue addressed related to the possibility that a law firm might link to the YouTube channel or video from the firm’s website or other types of online firm advertisements. According to the Committee, in that situation, it may be appropriate to label the videos as lawyer advertising. 

This opinion provides lots of helpful advice, so I would suggest you read it in its entirety, especially if you’re licensed to practice in New York. If you’re a New York lawyer, should your firm choose to use YouTube or other video platforms to share educational videos, make sure to follow the guidance from this opinion. Finally, if you’re still unsure whether an attorney advertising disclaimer is required, I would suggest you include it. As I always say, better safe than sorry.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at [email protected].

New Lawyer Ethics Code Now in Effect in New York

A new code of conduct for attorneys went into effect yesterday in New York.  Be aware of the changes.

This Law.com article summarizes some of the changes.  From the article:

Differences between the old code and the new rules largely concern the more expansive definitions provided in the new guidelines, according to Krane.

For instance, the new code declares that conflict waivers must be the product of informed consent confirmed in writing. "Informed consent," "confirmed in writing" and "writing" are all defined in the new rules, Krane noted...

Professor Stephen Gillers of New York University School of Law said another major change is the abandonment of the way the code treated instances where lawyers discovered that their clients had provided false information to a court or another tribunal. The expiring code treats disclosure of confidential information by the lawyer, even to correct a wrong against another party in litigation, as a violation of attorney-client privilege.

Under the new rules, the state has adopted the ABA model rules provision that a lawyer is required to disclose a false representation by a client, either intentional or unintentional, to the court in any criminal or civil matter.

New York Lawyer Advertising Rules Appellate Argument

Last week, the Second Circuit heard arguments in the State's appeal of NDNY's Judge Scullin's ruling that 4 of the previously enacted provisions regarding lawyer advertising were unenforceable.

A summary of Judge Scullin's prior ruling can be found in this prior blog post. 

As reported in this New York Law Journal article, the appellate judges appeared skeptical that Judge Scullin erred in his ruling.

Within minutes of the start of the hourlong argument in the Second U.S. Circuit Court of Appeals, all three members of the panel had swept past the state's main argument that the restrictions are outside the reach of free speech protection. Instead, they zeroed in on the issue of whether the restrictions were narrowly tailored to their intended purpose.

However, the judges -- Sonia Sotomayor, Guido Calabresi and John M. Walker Jr. -- appeared skeptical of the challengers' claim that Northern District Judge Frederick J. Scullin had erred when he sustained a 30-day moratorium on all forms of communications aimed at mass disaster victims and at other possible personal injury claimants.

The State's Appellate Brief can be found here. The Respondent's brief can be found here.  The State's Reply Brief can be found here.

Also of interest is that on April 1, 2009, new rules of professional conduct will go into effect in New York as described here and codified here.  Much of the language regarding lawyer advertising can be found in Rule 7.1.

I haven't reviewed the new rules extensively at this point, but they appear to adopt much, if not all, of the language from the disputed rules regarding lawyer advertising. 

I haven't heard anyone discuss the relevance of the rules that will go into effect in April in regard to the issues raised in this appeal. Is the Second Circuit appeal, or at least certain aspects of it, rendered moot by the new rules? 

It would seem that if the Second Circuit upholds the unconstitutionality of the provisions at issue, then the mirror provisions in the new rules would be likewise unconstitutional.  However, if the language is not identical, would it then require the filing of another lawsuit challenging the newest set of ethical rules, if it could be argued that the new rules are slightly different than the old ones?

Your guess is as good as mine.

AG Files Appellate Brief in Lawyer Advertising Lawsuit

Via the ABA Journal's blog I learned that the New York Attorney General has filed  an appellate brief in New York lawyer advertising lawsuit. 

As I'd reported earlier, the AG's office announced its intention to appeal the NDNY's decision in the lawyer advertising lawsuit wherein Judge Scullin granted an injunction declaring some provisions of the New York lawyer advertising rules unenforceable.

A copy of the AG's brief can be found here.  I'll provide further commentary once I've had a chance to review it.

Much thanks goes out to Greg Beck of the Consumer Law & Policy Blog for keeping me up to date.

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.

 

Do New York Lawyer Advertising Rules Allow NY Lawyer to Solicit Clients in Another State?

I received the following rather interesting inquiry via email from a New York lawyer who reads this blog:

Is a New York attorney allowed to create a website to solicit for cases in another state when no partner or associate is admitted in that state? I assume that the attorney is hoping to simply sign up the clients and refer those cases to an attorney admitted in that state.

It's an interesting issue and I'm not entirely sure of the answer.  It requires analysis of those newly promulgated New York lawyer advertising rules still in effect following the NDNY's issuance of an injunction staying some of the rules, as explained in this prior post, in conjunction with analysis of the particular rules governing advertising in the targeted jurisdiction.

After reviewing the applicable rules, I'm not entirely sure whether the rules prohibit solicitation in another jurisdiction.  My educated guess is the all time favorite response of lawyers that drives clients crazy:  it depends.  It depends on the method and content of the solicitation,  who is solicited and whether the type of solicitation used complies with applicable rules regarding lawyer advertising, among other factors.

In other words, I simply can't answer the question.  But, what I can do is set forth a few of the applicable provisions and ask you, my learned readers, for your opinion.  And, that I shall do.

1200.8(b) provides:

(b) 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.

1200.8(a) prohibits solicitation:

(1) by in-person or telephone contact, or by real-time or interactive computeraccessed communication unless the recipient is a close friend, relative, former client or existing client; or

(2) by any form of communication if: (i) the communication or contact violates sections 1200.6(a), 1200.8(g) or 1200.41-a of this Part; (ii) the recipient has made known to the lawyer a desire not to be solicited by the lawyer; (iii) the solicitation involves coercion, duress or harassment; (iv) the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer; or (v) the lawyer intends or expects, but does not disclose, that the legal services necessary to handle the matter competently will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or of counsel.

It would seem that as long as the proposed web site does not fall under the definition of "solicitation" set forth above, complies with all applicable New York rules, including those referred to in 1200.8(a)(2), and does not violate the rules of the targeted jurisdiction, it would be ok.  But that's just my gut instinct, and certainly does not constitute legal advice in any way, shape or form.  And, divining the answer won't be easy since analysis of the applicable provisions would most certainly take a fair amount of time.

Another interesting issue raised by this question is whether the proposed conduct--soliciting clients in another jurisdiction in which one is unlicensed for the purpose of referring said clients to a licensed attorney in that jurisdiction--constitues the "practice" of law without a license.

Again, my gut instinct is that it doesn't, since no "practicing" actually occurrs, but again, I've not researched the issue.

So, what do you think, fair readers?  Anyone care to offer their learned opinion?

AG Appeals NY Lawyering Advertising Ruling

Earlier today, the Attorney General filed a Notice of Appeal challenging the ruling of federal district court Judge Scullin which declared certain provisions of the recently enacted lawyer advertising rules unconstitutional, as more fully explained in this post.

As reported in this Business Review article:

At the 11th hour, the state Attorney General's office filed a notice of appeal seeking to reverse a decision that found many of New York's attorney advertising guidelines to be unconstitutional...

The case was brought by Public Citizen that represented its members, attorney James Alexander and Syracuse law firm Alexander & Catalano LLC.

"We'll keep fighting; we're not going to give up at this point," Greg Beck, an attorney who litigated the case for Public Citizen, said about the appeal. "I think the district court's decision was careful and well-reasoned and I have a hard time feeling it will be reversed on appeal"...

The court permanently banned enforcement of most of the challenged rules against attorney advertising, including rules against attention-getting techniques; use of nicknames and mottos; use of client testimonials; portrayal of judges; and use of Internet pop-up ads.

Yet another interesting development in this lawsuit.  I'm looking forward to following this appeal and will provide updates as I learn more.

My prior posts on this issue can be found here.

New York Lawyer Advertising Rules Round Up

The dust is now settling a bit since Judge Scullin handed down his decision last week which declared a number of the recently enacted New York lawyer advertising rules unconstitutional and enjoined their enforcement.  If you haven't already seen it, the court's decision can be found here.

Just as I predicted, the State has announced its intention to appeal to the Second Circuit Court of Appeals, as reported by Eric Turkewitz at the New York Personal Law Blog and in this New York Lawyer article.

And, the New York Law Journal offers an extensive analysis of the issues involved in this article, which also includes quotes from many of the relevant players.

On July 24th, the New York State Bar Association issued a statement regarding the decision, which can be found here.  From that statement:

“Our Task Force on Lawyer Advertising began its work two years ago to address the dual concerns of protecting the public from false or misleading advertising or solicitation by attorneys while recognizing the legitimate interests of lawyers in informing the public about legal services. We are gratified that the Court has recognized this balance of interests and we are in agreement with the Court's decision, which in many areas referenced the analysis provided by our Task Force. Going forward, we welcome the opportunity to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.”

Kathryn Grant Madigan, the current president of the NYSBA offers more insight here, including a summary of the rules upheld and those which were declared unconstitutional:

The following provisions of the Disciplinary Rules have been held unconstitutional, and the grievance committees are enjoined from enforcing them:

DR 2-101(C)(1) - endorsements/testimonials from current clients;
DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc.;
DR 2-101(C)(5) - techniques irrelevant to selection of counsel (e.g., a law firm appearing as baseball players);
DR 2-101(C)(7) - nicknames/monikers/mottos that imply an ability to achieve results;
DR 2-102(G)(1) - use of pop-up/pop-under advertisements.

The following provisions have been upheld:

DR 2-102(E) - domain name limitations;
DR 2-103(G) - 30-day rule re solicitation;
DR 7-111 - Communications after personal injury/wrongful death.

Blog posts of note regarding the recent decision include:

• Legal Blog Watch: N.Y. Advertising Laws Held Unconstitutional
• New York Personal Injury Law Blog: NY Advertising Rules Found Unconstitutional By Federal Judge
• f/k/a:federal court decimates NY lawyer ad rules and heavy hitters back on deck
• Real Lawyers Have Blogs: New York lawyer advertising rules declared unconstitutional

My prior posts on this issue can be found here.

Summary of Sections of NY Lawyer Advertising Rules Affected by Injunction

As indicated in my prior post, Judge Scullin of the NDNY granted an injunction against many provisions of the recently enacted New York lawyer advertising rules, about which I've blogged extensively in the past.

Greg Beck, the attorney for plaintiffs, has more here at the Consumer Law & Policy Blog.

The decision grants the plaintiffs' request for an injunction barring the enforcement of the following rules, and also declares them to be unconstitutional in violation of the First Amendment: 

Disciplinary Rules of the Code of Professional Responsibility contained in N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1).

Let's take a look at the rules affected:

1200.6(c)(1), (3),( 5), and (7):

Section 1200.6 [DR 2-101] Advertising. (c) An advertisement shall not:

• (1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending;
• (3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case;
• (5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence;
• (7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

1200.6(g)(1): (g) A lawyer or law firm shall not utilize:

• (1) a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firm’s own web site or other internet presence...

So, will the State appeal it?  My guess?  Yep.  What do you think?

BREAKING NEWS: Injunction Granted in NDNY by Judge Scullin Against the Newly Enacted Lawyer Advertising Rules

UPDATED:  For those visiting from Auto Admit, please note that not all of the NY lawyer advertising rules have  been affected by the Court's ruling--just many of those challenged in the lawsuit.  For specifics, see my follow up post which sets forth the specific sections that have been affected by the Court's ruling.

And, good luck on the bar exam! 

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Congratulations are in order for Greg Beck and Public Citizen!  From the press release at the Public Citizen's web site:

New Lawyer Advertising Rules in New York Violate Free Speech, Federal Court Rules

Public Citizen Wins Injunction Against Unconstitutional Rules

WASHINGTON, D.C. – New rules governing lawyer advertising that took effect in New York on Feb. 1 cannot be enforced because they violate the First Amendment right to free speech, according to a ruling issued today by a federal court in New York.

The U.S. District Court for the Northern District of New York ruled in favor of Public Citizen’s request for an injunction against many of the new rules. The organization represented its members and attorney James L. Alexander and his law firm, Alexander & Catalano. The New York firm was forced to change its advertisements to comply with the more restrictive rules.

The new guidelines were part of a revision of the rules contained in New York’s Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements.   Public Citizen contended in its lawsuit that the rules’ broad language unconstitutionally prohibited truthful communication of information about legal services to New York consumers. The court heard oral argument on June 18.

In a victory for First Amendment rights, the court permanently enjoined enforcement of most of the challenged rules against attorney advertising, including rules against attention-getting techniques, the use of nicknames and mottos, the use of client testimonials, the portrayal of judges and the use of Internet pop-up ads.

“The New York rules went too far in imposing burdensome restrictions on legal free speech that do not protect consumers,” said Greg Beck, an attorney for Public Citizen who litigated the case. “The court rightly recognized that the First Amendment prevents states from arbitrarily restricting advertising just because some may find it distasteful.”

In today’s ruling, the court held that the advertising at issue in the case was a form of speech protected by the First Amendment, and it categorically rejected New York’s argument that advertising considered by the state to be trivial or irrelevant was not covered by free speech rights. It noted that the state had not produced any evidence that its restrictions on speech were necessary to protect consumers and found that the prohibitions were much broader than necessary to accomplish the state’s claimed objectives.

Public Citizen also challenged the rules’ application to non-commercial speech, such as offers by lawyers to represent clients without a fee in civil rights cases. And in what amounted to another victory for free speech, the court construed the challenged amendments not to apply to nonprofit attorneys.

“The main beneficiaries of this decision are New York consumers,” Beck said. “Truthful advertising promotes healthy competition between lawyers and allows the public to learn about their rights and available legal services.”

The Court's decision can be found here.

From the decision:

Accordingly, having reviewed the parties’ submissions and heard their arguments in support of, and in opposition to, the current motions, and for the reasons stated in this Order, as well as at oral argument, the Court hereby

     ORDERS that Plaintiffs’ motion for summary judgment is GRANTED and Defendants’ motion for summary judgment is DENIED on Plaintiffs’ claims concerning N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1); and the Court further

     ORDERS that Plaintiffs’ motion for summary judgment is DENIED and Defendants’ motion for summary judgment is GRANTED on Plaintiffs’ claims concerning N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.7(e), 1200.8(g), and 1200.41-a and Plaintiffs’ claims concerning the amended rules’ applicability to non-commercial communications; and the Court further

     ORDERS that Plaintiffs’ request for a declaration that N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1) are unconstitutional based on the current record is GRANTED; and the Court further

     ORDERS that Plaintiffs’ request for a permanent injunction is GRANTED according to the following terms: Defendants are hereby enjoined from enforcing amendments to the Disciplinary Rules of the Code of Professional Responsibility contained in N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1), which took effect on February 1, 2007; and the Court further

     ORDERS that the Clerk of the Court shall enter judgment and close this case.

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The New York lawyer advertising rules affected can be found here.