N.Y. Court System Rules Hit Lawyers' Internet Practices

Warren That's the headline in Warren's Washington Internet Daily, a newsletter for Washington, D.C. insiders.  Rules governing bloggers and Web sites are going from bad to worse.  Here's their story:

In a move that could cripple legal blogging and reduce consumer convenience, N.Y. amended rules on lawyers' ads. Curbs taking effect Feb. 1 limit attorneys' ability to solicit potential clients and use marketing that may deceive. Several N.Y. law blogs slammed the changes as unfair, although the N.Y. Appellate Div. presiding justices formally reworked the rules after receiving complaints about proposed restrictions from lawyers and the FTC.

The amendments define an advertisement as a "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." Critics called this definition ambiguous because it is unclear how an ad's "primary purpose" is determined.

The definition may include attorney websites and blog posts, Larry Bodine, a marketing consultant in Chicago, told Washington Internet Daily. Blogs and websites shouldn't be deemed ads because they are not pushed at consumers like television and newspaper marketing, he said.

The definition is less vague than its initial form, said Nicole Black, who writes N.Y. law blog Sui Generis. The court added a sentence saying the definition doesn't include communications such as those directed to existing clients or other lawyers, she told us.

The amendments set style rules for law ads. The rules bar testimonials relating to pending matters. Lawyers must ensure that testimonials have factual support and attach a disclaimer that "prior results do not guarantee a similar outcome." Ads must identify paid endorsements and testimonials, as well as dramatizations and use of actors. Finally, advertisements not running in periodicals or on radio or television must be labeled "Attorney Advertising" on the first page or in the subject line.

These style rules don't necessarily target deception and may restrict ads that aren't misleading, FTC staff said. The rules could prevent online transmission of useful information to consumers and impair competition, it said.

On the Web, the rules restrict pop-up or pop-under ads appearing on sites other than a lawyer's or law firm's home page. And lawyers must make records of a website's content at its creation, after any major update and at least every 90 days. The last obligation could be a hassle for large sites that may have hundreds of pages, Bodine said.

The amendments also prohibit solicitation "by real time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or current client." If this means online attorney matching is illegal, the costs of finding a lawyer could rise significantly, FTC staff said in comments to the N.Y. Unified Court System (WID Sept 26 p4).

The new amendments are final, but Bodine predicts legal challenges. They likely will be fought as unconstitutional in general, or a lawyer will be cited and appeal the decision, he said. "It's ridiculous to have courts govern advertisements," Bodine told us: "Courts should get out of the lawyer marketing business because they don't understand it."

New Yorkers for Free Speech, a group of N.Y. State Trial Lawyers Assn. members who opposed the amendments at their debut, and at least one other group already have considered bringing suit, Black said. Floyd Abrams, a First Amendment expert with New Yorkers for Free Speech, since has told the N.Y. Law Journal the amendments' final version is a "significant improvement" and that the group is considering a formal response.

Similar rules exist in Florida, Texas and Iowa, Bodine said. More states likely will follow N.Y.'s example, he said. California, Indiana and Rhode Island have plans similar amendments, according to The National Law Journal. Texas and Missouri also recently updated their ad rules.

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