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<<The ruling in Bates v. State Bar of Arizona, however, left the states with a great deal of leeway to regulate attorney advertising, and many states have drafted more stringent guidelines to protect consumers.
To be sure, the majority of law firms' advertisements today are developed in good taste and with increasing sophistication — in line with the Court's supposition in Bates that most lawyers would continue to act with integrity and honor. However, even with the state-imposed restrictions, questionable ads featuring so-called "ambulance-chasing" attorneys still appear — the kind of advertising that former U.S. Supreme Court Chief Justice Warren Burger denounced as "the outrageous breach of professional conduct we see in the huckster advertising of some attorneys."
Reacting to these kinds of concerns, the New York State Unified Court System and the New York State Bar Association on February 1 implemented regulations to protect consumers from inappropriate, aggressive, or misleading advertisements.
New York joins several other states in tackling these issues. Currently, Florida has strict attorney advertising rules in place, and Louisiana is considering implementing a similar model. Washington State, the District of Columbia, and Ohio have also imposed or announced additional restrictions on attorney advertising.
Additionally, ethics monitors in Kentucky have subjected lawyer-written blogs to increased scrutiny by labeling the blogs "advertising" and requiring that they be submitted for commission approval and filed for a $50 fee. Finally, an ethics committee appointed by the New Jersey Supreme Court concluded that Super Lawyers, a listing of the state's "top practitioners" as determined by attorney peers who participate in the voting process, violated rules of professional conduct. New Jersey is the first state to raise questions about Super Lawyers.
New York joins this trend toward increased scrutiny with its first reforms in a decade and the most sweeping since the state began regulating attorney advertising in 1990. The reforms not only address advertising through traditional media but also through electronic media such as the Internet. Given the prominence of New York as a legal and commercial center, the rules will impact law firms and lawyers outside the state and throughout the nation.
Interpreting the New Rules
Many in the legal community have denounced the rules as overly restrictive and subject to interpretation. So how should attorneys interpret the new rules, which are, indeed, vague at best?
Most firms have chosen to interpret the definitions very conservatively, awaiting further guidance from the courts. That being said, there are definite rules that each law firm doing business in New York should implement or monitor accordingly.
First, the rules define advertising as "any public or private communication made on behalf of a lawyer or law firm about that law firm's services, the primary purpose of which is for the retention of the lawyer and the law firm." This does not include communication with existing clients or other lawyers.
The rules also prohibit specific actions and clearly limit the use of testimonials and dramatizations. Under the new rules, attorney advertisements may not:
Include paid endorsements from celebrities unless their compensation is revealed;
Feature actors portraying lawyers or clients if they are not identified as such;
Include endorsements from current clients;
Resemble legal documents;
Use attention-grabbing techniques that are not relevant to the selection of counsel;
Include nicknames, monikers, mottos, or slogans and trade names that imply an ability to obtain specific results.
Along with the prohibited actions, the rules provide guidance on permissible advertising. For instance, advertising may include testimony from former clients, statements comparing the lawyer's services with those of other lawyers, and use of "bona fide professional ratings," such as listings in Chambers or Martindale.
Another section of the rules allows attorneys to use statements that are "reasonably likely to create an expectation about results the lawyer can achieve" as long as the advertisement complies in other areas and includes a disclaimer that past results don't guarantee successful outcomes.
Of major significance is the fact that traditional and Internet advertisements must be labeled "attorney advertising." Attorneys must retain copies of all print ads for three years after initial dissemination and for one year for "any advertisement contained in a computer-accessed communication."
In an effort to make the regulations consistent with the use of new technology, the rules include special requirements for "computer-accessed communication," including websites, blogs, search engines, email, chat rooms, and "pop-up" or banner ads.
Websites must comply with the rules, and law firms must label their homepages as "Attorney Advertising" — a step that most major law firms in New York have taken already. The rules also ban pop-up and pop-under ads.
Because the rules forbid an implication of an ability to obtain results, website domain names may not use monikers such as "toughlawyer.com." In addition, websites may not use so-called "meta tags" — the descriptions of sites included in their source code or other invisible codes — if they would violate the rules if they were visible.
Every firm must keep a copy of its website for a year from publication, or upon a major modification, and that copy must be updated at least every 90 days.
Email, Client Memos, and Brochures
For other types of materials, such as email, brochures, and annual reviews, the advertising and solicitation requirements become more slippery. Many firms consider client memos or brochures to be part service and part marketing. If the primary objective of the materials is to gain clients rather than to provide educational material, then more stringent requirements regarding solicitation apply.
All advertisements must include the firm's name, principal office address, and telephone number. Ads and brochures also must carry the "Attorney Advertising" statement on the first page. Email ads must include "Attorney Advertising" in the subject line. The email subject line requirements have raised concerns that such communications may simply be blocked by corporate spam filters.
The rules also contain new "anti-runner" provisions that prohibit both plaintiffs' and defense lawyers from soliciting clients in personal-injury and wrongful-death cases for 30 days. These portions of the rules were designed to protect victims and their families from "overly aggressive marketing." These anti-runner provisions by themselves strike at the heart of the First Amendment and restrict law firms in ways not faced by companies in any other field of business.
Objections and Concerns
The new rules have engendered confusion and concern among lawyers and regulators. The Federal Trade Commission has filed comments objecting to the new rules, complaining that many were excessively strict. The Ralph Nader group Public Citizen has filed a lawsuit seeking to block enforcement, contending the rules violate the free speech protections of the First Amendment.
In addition, there are concerns that the rules may not take into consideration the national and international characteristics of medium-sized and large law firms today, which may have offices around the country and around the world. Chief among those concerns is the question of which firms and attorneys will have to abide by the New York rules. For instance, non-New York firms seeking clients domiciled in the state would apparently be bound by the rules, as would New York lawyers in a foreign office of an international firm.
Another question raised by the new rules is that of enforcement. There are concerns that enforcement could be more active in selected areas of the state rather than uniform.
The major questions about the new rules will likely be addressed in the course of time if not in the courts. In the meantime, firms based in New York or doing business in the state will have to decide how to approach the requirements of the often vaguely worded rules.
As the Supreme Court noted 30 years ago, the states do have an interest in restraining deceptive legal advertising. The New York rules, however, may have overreached in an attempt to regulate taste by targeting non-controversial advertising and marketing practices instead of focusing on those that are truly unseemly, undignified, and deceptive.
Disclaimer: This article is for informational purposes only and not intended to serve as legal counsel. Due to the sweeping changes of the rules, we strongly encourage attorneys with questions about the rules and their applicability to consult with their firms' ethics counsel. A full listing of the rules may be found at www.nycourts.gov/rules/attorney_ads_amendments.shtml.
About the Author
Amy Van Prooyen Greenfield, Esq., is founder and managing partner of Van Prooyen Greenfield, LLP, a boutique law firm specializing in providing strategic public relations counsel, litigation communications, and marketing services for law firms and the legal industry. Please visit www.vpgllp.com for more information.
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