Final NY Advertising Rules are Atrocious
The revised New York attorney advertising rules are out, and they're just awful. Could the courts come up with anything more anti-marketing and more prehistoric? The rules go into effect on February 1, and there are no more comments allowed or hearings scheduled.
New York is beginning to look a lot like Iowa, the most restrictive state in the country for lawyer marketing. The worst part is Section 1200.6 [DR 2-101] which forbids:
- Use of "actors to portray the lawyer, members of the law firm, or clients, or depictions of fictionalized events or scenes, without disclosure of same." Hello! Don't the rulemakers ever watch TV? Whom are they protecting? People who have never seen a TV ad?
- "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." Do the courts have nothing better to do than monitor pop-up ads?
- "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." Talk about an undue burden! What a waste of time and effort. Aren't there lawyers stealing from trust accounts that the courts should focus on?
"A lawyer shall not...engage in solicitation...by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or current existing client." However the rest of the world can send emails and make comments on listservs. Just not those crafty, golden-tongued lawyers.
Attorney Roy D. Ginsburg noted, "I think it likely that certain interested parties will file lawsuits seeking to enjoin certain provisions of the rules on constitutional grounds once they do go into effect. Which parties will sue and what provisions will actually be challenged is anyone's guess. In any event, it's likely the courts will be busy with this stuff sooner rather than later over some of the rules. Alternatively, a party could challenge a certain provision once he or she gets disciplined for violating one of the rules."
"In terms of litigation challenging the Rules, note this irony. If a provision of the Rules is challenged -- even if a lower court upholds the challenge and declares a rule unconstitutional -- if there is an appeal, the judges reviewing the appeal at the Appellate Division level will be the very same people who wrote the rules in the first place! How will the Appellate Division deal with that conflict?"
One section of these new rules say that attorneys can only solicit clients, close friends and relatives? How will the courts define a close friend? I might say someone is a close friend but the person receiving my letter or email may not agree. These rules, by and large, are a setback for many lawyers and firms who were just starting to understand business development and technology. The Office of Court Administration did a good job of revising some of the rules when there was an uproar in recent months. But too many provisions of the rules that go into effect Feb. 1 are unduly burdensome and illogical. If the goal of the new rules was to restore integrity to the profession, the energy could have been better spent elsewhere. A better approach would be if the OCA and the many bar associations around the state use MORE marketing and advertising, including the Internet, to educate the public about the law and client rights, professional ethics and discipline, and the workings of a very confusing court system.
"A lawyer shall not...engage in solicitation...by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or current existing client."
So basically you can't use the internet in any way to solicit new clients unless they're your friend or relative? Wow. That kinda puts a damper on things.
What if the pop up says "The hiring of a lawyer is an important decision and should not be made on the basis of advertising alone. Ask any law firm you are considering hiring to send you more complete information about their services and fees?
That shows how stupid the ban is.
And who uses pop ups anyway? That's yesterday's technology. Wait till they see what's coming next!
Ben Glass, Fairfax, VA