After reviewing the final version of the New York lawyer advertising rules, my first thought was "Well, it could have been a lot worse." It appears that the drafters gave careful and thoughtful consideration to many of the comments and criticisms made regarding the proposed rules. There are still some areas of concern, but as a whole, the promulgated rules are far more tailored toward what the drafters likely viewed as "problematic" advertising than the proposed rules had been.
To begin with, the definition of "advertisement" was significantly altered:
Proposed: “Advertisement” means any public communication made by or on behalf of a lawyer
or law firm about a lawyer or law firm, or about a lawyer’s or law firm’s services. [1200.1(k)]
Final: "Advertisement” means any public or private communication made by or on
behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose
of which is for the retention of the lawyer or law firm. It does not include communications
to existing clients or other lawyers. (1200.1(k)]
Clearly the drafters listened to the complaints that the proposed definition was overly broad and would require lawyers to treat any communication, such as law journal articles on legal issues or emails to other lawyers regarding legal issues, as an "advertisement." The new definition significantly limits the types of communications that trigger the new rules. And, the new definition causes this blogger to breathe a sigh of relief, since both my blog and business website are specifically targeted toward other lawyers and thus don't fall within the ambit of the definition.
The definition of "solicitation" was also revised:
Proposed: “Solicitation” means any advertisement or other communication directed to or targeted
at a specific recipient or group of recipients, including a prospective client, or a family
member or legal representative of a prospective client, concerning the availability for
professional employment of a lawyer or law firm. [1200.1(l)]
Final: 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(b)]
Again, the drafters narrowed the definition, presumably in response to criticisms that certain "innocent" communications with client and others might inadvertently trigger the definition.
The definition of "computer-accessed communications" did not change much, although it was narrowed somewhat, but notably, was modified to specifically include "weblogs".
The final rules also reflect a modification to the section relating to the use of pop-ups by specifying that the use of pop-ups on one's own website is permissible, although use of pop-up ads elsewhere is not. Attorney Josh Stein, mentioned in a prior Sui Generis post, had expressed concerns with the section of the proposed rules that prohibited the use of any pop-ads, including those used on his own website.
Section 1200.6, the section addressing the content of advertisements and the requirements relating to lawyer advertisements, was also changed quite a bit in the final version of the rules. One issue raised by a number of bloggers was the apparent absurdity of the ban on the use of a courtroom or courthouse in advertisements that was included in the proposed rules. That ban was removed from the final version, although the content of advertisements is still limited quite a bit in the final rules. The rules provide that 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;
(2) include a paid endorsement of, or testimonial about, a lawyer or law firm without
disclosing that the person is being compensated therefor;
(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;
(4) use actors to portray the lawyer, members of the law firm, or clients, or utilize
depictions of fictionalized events or scenes, without disclosure of same;
(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;
(6) be made to resemble legal documents; or
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain
results in a matter. [1200.6(c)]
It would appear that the concerns raised by a downstate firm, Meltzer, Lippe, Goldstein & Breitstone, LLP, which utilized New Yorker law-related cartoons in its brochure and on its website and raised concerns regarding the ban on the use of fictional characters (as explained in this Sui Generis post) were not heeded since subdivision 3 was not removed in the final version. In my opinion, that's unfortunate, since I highly doubt that this firm's use of fictional characters was of the type that the drafters were seeking to prevent.
The concerns raised by many bloggers (and other New York practitioners with a web presence) regarding the retention and filing requirements were also addressed and those provisions were modified quite a bit.
Specifically, I'm happy to report that one of the concerns that I raised in my letter to the OCA was addressed. In my letter, I'd suggested that the rules limit the circumstances that trigger the filing and/or retention of a website or blog such that "the requirements regarding retention and/or filing of web pages should apply only after major changes are made to the format of a blog...since blogs are not static web pages and the content of a blog could feasibly change hundreds of times per day". The drafters apparently took this request to heart and modified that provision to include language similar to my own. In fact, I dare say they actually improved upon it!
Proposed: If the an advertisement is broadcast, it shall be prerecorded or taped and
approved for broadcast by the lawyer, and a recording or videotape of the actual
transmission shall be retained by the lawyer for a period of not less than one three years
following such transmission. A copy of all written advertisements and solicitations and
computer-accessed communications shall be retained for a period of not less than three
years following their dissemination, except that in the case of an internet web site a printed
copy of each page shall be retained for a period of not less than one year from its first
publication or modification. [1200.6(n)]
Final: All advertisements shall be pre-approved by the lawyer or law firm and a copy
shall be retained for a period of not less than three years following its initial dissemination.
Any advertisement contained in a computer-accessed communication shall be retained for
a period of not less than one year. A copy of the contents of any web site covered by this
section shall be preserved upon the initial publication of the web site, any major web site
redesign, or a meaningful and extensive content change, but in no event less frequently
than once every 90 days. [1200.6(k)] (Emphasis added).
Hopefully, a digital copy of a blog is sufficient. Otherwise, my fellow bloggers whose blogs happen to fall under the definition of "advertisement" may have to kill a few dozen trees every 3 months, since some blogs can be quite lengthy. My blog alone is over 400 pages long. It's unclear to me after skimming over the rules whether a digital copy will suffice, but perhaps I missed the relevant language.
Finally, one provision that appears to be somewhat problematic in the final version of the rules was raised in this post at New York Personal Injury Law Blog. In it, attorney Eric Turkewitz raises the issue of whether a provision of the new rules exceeds the applicable scope of the rules by attempting to improperly regulate insurance companies and their non-lawyer agents. The provision at issue is 1200.41-1, which provides:
(a) In the event of an incident involving potential claims for personal injury or
wrongful death, no unsolicited communication shall be made to an individual injured in the
incident or to a family member or legal representative of such an individual, by a lawyer or
law firm, or by any associate, agent, employee or other representative of a lawyer or law
firm, seeking to represent the injured individual or legal representative thereof in potential
litigation or in a proceeding arising out of the incident before the 30th day after the date of
the incident, unless a filing must be made within 30 days of the incident as a legal
prerequisite to the particular claim, in which case no unsolicited communication shall be
made before the 15th day after the date of the incident.
(b) This provision limiting contact with an injured individual or the legal
representative theoreof applies as well to lawyers or law firms or any associate, agent,
employee or other representative of a lawyer or law firm who represent actual or potential
defendants or entities that may defend and/or indemnify said defendants. (Emphasis added).
It's an interesting question, and one that was raised at a seminar on the proposed rules that I attended last August. The gist of the answer was, as I recall, that contact had been or would be made with the Department of Insurance and that an effort would be made to encourage them to promulgate a similar ban in the insurance regulations. I'm not sure what progress has been made on that front.
All in all, the rules as promulgated aren't perfect, but are a much better version than the originally proposed rules. It will be interesting to see if anyone chooses to file suit challenging the final version of the proposed rules. The scuttlebutt on the street is that those who were considering doing so are not yet sure of their next step, since many of their concerns were addressed by the changes in the final version. My prediction is that a lawsuit will be filed only after a grievance against a particular attorney is filed for violating a rule. Only time will tell if I'm right...