NY Lawyer Advertising Rules

New York Lawyer Advertising Rules Round Up

Here's a quick round up of articles and blog posts on the revisions to the New York lawyer advertising rules which will become effective on February 1, 2007:

Are Blogs "Advertisements" Under the New York Lawyer Advertising Rules?

For New York lawyers with blogs, it's the 100 million dollar question:  Are our blawgs "advertisements" under the newly promulgated New York lawyer advertising rules, which go into effect on February 1st?   

Pursuant to 1200.1(k), "advertisement" is defined as:

(A)ny 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.

In my opinion, none  of the New York blogs that I am currently aware of are advertisements as defined by the rules, since I wouldn't characterize the primary purpose of said blogs to be the retention of a lawyer or law firm.  That may be one of the reasons for the existence of each blog, but it's not the primary purpose.

I would argue that most of the things that lawyers do in the professional arena outside of the office are done for the purpose of networking.  And, of course, one of the intended goals of any sort of professional activity outside of the office--be it speaking at a seminar, authoring an article in a legal publication, joining a committee at the local bar association, or publishing a blog--is to obtain referrals and/or new clients.  But the retention of clients is certainly not the primary purpose of any of these activities.

In comparison, I think that most people would agree that the primary of television and radio ads, billboard ads, professional websites and yellow page ads is the retention of clients.

Blogs are different from the aforementioned ads because the primary purpose of blogs is the dissemination of information that is separate and distinct from the self promotion that is the essential element of most advertisements.  Blogs educate the reader about a subject matter that is unrelated to the self promotion of the blogger.  Certainly increased visibility of the blogger is a byproduct of the publication of a successful blog; and as a result of that visibility, one might retain new clients.  But, that doesn't mean that the primary purpose of the blog is the retention of clients.

Blogs--at least the New York blogs that I am currently aware of--do not, therefore, constitute "advertising" under the newly promulgated rules.  At least, that's my take on it. 

But, as we lawyers know all too well, reasonable minds can differ.  Anyone out there disagree with me?  Agree with me?  On the fence?  I'd love to hear from you...

Washington Internet Daily Article On NY Lawyer Advertising Rules

Tomorrow I'll address the issue of whether blogs constitute an "advertisement" under the newly promulgated New York lawyer advertising rules.

In the meantime, I offer you the following article regarding the new rules from the Washington Internet Daily entitled "N.Y. Court System Rules Hit Lawyers’ Internet Practices".  You'll have to scroll all the way down to page 7 to read it.  And, then you'll have to make sure not to miss paragraphs 4 and 10 of the article, where yours truly was quoted. 

It's scintillating stuff, I tell ya, and well worth the 7 page scroll.

New York Lawyer Advertising Rules--It Could Have Been Worse

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...

Round Up Of Commentary On NY Lawyer Advertising Rules

I'll post my comments on the rules later on today, but in the meantime here's a quick round up of substantive commentary from around the blogosphere regarding the New York lawyer advertising rules that go into effect on February 1, 2007:

UPDATE:  A Buffalo Law Journal article on the proposed rules can be found here.

My prior posts on this issue can be found here.

New York Lawyer Advertising Rules--Final Amendments

You may have already learned from a number of New York bloggers that the final version of the amendments to the New York lawyer advertising rules have been released.  A summary of the changes can be found here and a redlined version can be found here.

The official version of the rules can be found at the OCA's website here.  The new rules will become effective on February 1, 2007.

A Law.com article on the new rules can be found here.

I'll post again once I've had a chance to review the rules in depth.

My prior posts on this issue can be found here.

Podcast On Proposed New York Lawyer Advertising Rules

I recently participated in a podcast with a few of my fellow New York blawgers that centered around a discussion of the potential affect of the proposed changes to the New York lawyer advertising rules  on lawyer blogging.  You can listen to the podcast here.

Jim Milles, Associate Dean for Legal Information Services, Director of the Law Library, and Professor of Law at the University of Buffalo Law School, hosted the podcast at Check This Out!.  He also publishes a blog, Buffalo Wings & Toasted Ravioli.

Also participating in the podcast were my fellow New York bloggers, Bill Altreuter of the Outside Counsel blog and Matt Lerner of the New York Civil Law blog. 

It was a really interesting discussion and I was honored to have been included.

Are Lawyer Blogs Subject to the Lesser Protections of the Commercial Speech Doctrine?

Professor Larry Ribstein posts at Point of Law that he has authored a legal opinion letter for the Washington Legal Foundation that considers the issue of whether New York's proposed changes to the lawyer advertising rules may force a reconsideration of the scope of the constitutional doctrine relating to the protection commercial speech.

The letter can be found here.

As he explains in the letter, commercial speech is entitled to a lower level of constitutional protection and may be regulated if the regulation is not misleading and promotes a substantial governmental interest.  He then states that:

Blogs in general, and lawyer blogs in particular, pose a particularly challenging problem for the commercial speech doctrine. Any blog by a practicing lawyer obviously promotes the lawyer’s skill and knowledge to some extent. At the same time, even the most blatantly self-promoting weblog may include both important ideas and valuable information about legal services that deserve constitutional protection. Blogs therefore illustrate the close connection between the “market for goods and the market for ideas” that led Nobel Prize-winning economist Ronald Coase to question limiting constitutional protection for commercial speech...

Blogs are also distinguishable from other commercial speech in that they involve more self expression than typical advertising. This is important because the Court suggested in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. that one reason for giving less protection to commercial speech is that profit-motivated speech is less likely to be chilled by regulation. Under this rationale, a lawyer who needs advertising to promote her business is less likely to be deterred by, say, a filing requirement or risk of sanction than a lawyer whose blog is partly a hobby.

If the Court decides to confront the First Amendment issue in regulating lawyer blogs, and seeks to preserve the commercial speech category, it may try to distinguish blogs from advertising. The foregoing analysis suggests that the Court should consider the degree of interactivity the blog invites (for example, does it permit comments and trackbacks?), and the extent to which the lawyer uses the blog to express judgments and opinions.

On the other hand, the issue of whether to apply the First Amendment to blogs might finally persuade the Court of the futility of trying to distinguish commercial and non-commercial speech for First Amendment purposes, and to abandon the “commercial speech” doctrine. Such a move could have significant implications in many areas of business, particularly including securities, regulation...

Blogs present a significant new opportunity for regulators. At the same time, regulators should understand that they risk giving courts an opportunity  to refashion the First Amendment into a more effective constraint on regulation of business speech.

It's an interesting issue, as is his analysis.

Let's hope it doesn't come to this and that the rules are modified to clearly exclude blogs.  That being said, as I interpret the proposed rules they don't apply to blogs, in part due to my understanding that blogs are not intended to be covered by the rules based upon the response that I received at a seminar regarding the proposed rules that I attended in August. 

During the seminar I raised my hand and asked the panel how the proposed rules and the definitions of "advertising" and "solicitation" were intended to affect lawyer blogs.  I was advised that blogs were not the type of lawyer communications that they were attempting to regulate when they drafted the rules and that the definitions of "advertising" and "solicitation" were not intended to cover lawyer blogs.  I was also told that they planned to tweak the definitions of "advertising" and "solicitation" based upon the comments that they had received thus far, prior to promulgating the rules.

So, I'm hopeful that come January 15th, the analysis provided by Professor Ribstein will be a moot point.  Either way, I can essentially guarantee that any number of lawsuits will be filed that same day challenging the validity of the newly promulgated rules.  And, rest assured, you can read about them right here at Sui Generis.

Proposed Changes to New York Lawyer Advertising Rules--Ban On Use of Fictional Characters Unconstitutional?

I recently learned of an interesting objection to the proposed changes to the New York Lawyer advertising rules. Cecilia Alers Consulting brought to my attention the fact that her client, a Mineola, New York law firm, Meltzer, Lippe, Goldstein & Breitstone, LLP, has submitted comments to the OCA objecting to the proposed changes on the basis that the restrictions upon the use of fictional characters are unconstitutional and violate the First Amendment right to free speech.   

The firm's letter objecting to the rules can be found here.  In it, the firm objects to (I presume) the provision set forth in Section 1200.6(d)(6):

An advertisement or solicitation shall not:  (6) include a portrayal of a client by a nonclient or the reenactment of any events or scenes or pictures or persons that are not actual or authentic...

The letter states, in relevant part:

(T)he rule is impermissibly “broad” by prohibiting our firm’s use of Cartoons as a method of advertising. It is our opinion that this rule is unconstitutional since it regulates a method of free speech rather than its content. Also by doing so, it handicaps a lawyer’s ability to communicate to clients in a clear, professional and humorous manner.

Enclosed is a copy of our firm’s brochure, which uses New Yorker cartoons with permission. When we created this brochure, corresponding web site and ads, our goal was to separate our law firm from the competition by stating our values in a simple, clear and succinct manner and to do so with a professional sense of humor demonstrated by using the nationally renowned New Yorker cartoons.

The law firm's brochure can be found here.

This is yet another example of what I believe to be the inadvertent overly broad reach of the proposed rules.  I highly doubt that the intent was to limit speech of this type and yet the end result of the proposed rule amendments is to limit a broad range of expression that is arguably protected by both State and Federal Constitutions.

I'm waiting with bated breath for January 15, 2007, the date of the amendments are to become effective.  I'm eager to review the officially promulgated rules, since I have a strong feeling that the Presiding Justices of the four Appellate Divisions have been listening to the comments submitted by attorneys across the sate and will accordingly make at least some changes to the rules prior to enacting them. 

Should you be interested, my prior posts on this issue can be found here.

Public Citizen, NYCLU, and ACLU Submit Comments Opposing NY's Proposed Rules Regarding Lawyer Advertising

Yesterday, as the Public Citizen, the NYCLU and the ACLU submitted comments urging that the proposed rules rules limiting lawyer advertising in New York be rejected across the board.  (Hat tip: Consumer Law and Policy Blog).

As explained in this post at the Consumer Law and Policy Blog, the comments, which can be found here, attack the proposed amendments on three gournds:

   1. The rules do not contain an exception for nonprofit attorneys, thereby restricting non-commercial and political speech at the core of the First Amendment.    
2. The rules contain pointless restrictions on the content of attorney advertising that seem aimed more at limiting competition than helping consumers. 
3. The rules impose draconian burdens on Internet speech that would, for example, require us to print out a copy of this blog every time it is modified.

Yesterday was the last day to submit comments regarding the proposed rules.  Did you get yours in on time?  I did.

Also, my prior posts on this issue can be found here, and include round ups of posts from other blogs and articles regarding the proposed rules.