f/k/a . . . the archives

January 6, 2007

New York lawyer ad rules — “retention” and more

Filed under: viewpoint — David Giacalone @ 3:28 am

Hanno Kaiser at Antitrust Review reported on Jan. 4th that the new advertising rules for New York lawyers have been finalized by the State’s judicial governing body, and will be effective on Feb. 1, 2007.  Hanno notes that the controversial definition of “advertising” has been narrowed greatly and that the ”focus of the new rules is less on enforcing good manners and more on requiring non-deceptive communication, which is clearly a huge improvement over the draft rules.”  (Click for the New York State Bar Association’s Jan. 4, 2007 press release about the new rules, and for a redlined edition of the rules, showing changes from the earlier proposal; update: John Caher has an excellent review of the rules, the controversy, and the actors, in “N.Y. Courts Adopt Moderated Version of Lawyer Ad Rules,” New York Law Journal/Law.com, January 8, 2007)

ScaliaGesture A few months ago, when it appeared that the proposed NY rules would define all lawyer-operated weblogs as advertising and to threaten their existence, much of the blawgiverse rose up righteously to complain. E.g., Consumer Law & Policy Blog, Point of LawLegal Blog Watch, Volokh Conspiracy, Sui Generis, Trademark Blog. The f/k/a Gang has been warning about the desire of the New York Bar’s “Dignity Police” to over-regulate (and discourage) lawyer advertising for years. (see, e.g., here; the same tendency can be seen in many other states)   I’m sure there will be much more commentary and parsing of the final advertising regs. [update (Jan. 9, 2007): Nicole Black at Sui Generis has compiled links to "substantive commentary" about the new ad rules.] I wanted to make a few comments while the Rules are still hot off the pixel press.

Here’s the new definition of “advertisement” (22 NYCRR 1200.1):

(k) “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. (emphasis added)

NoloShark a) We usually hate to be snarky (or sharky), but who drafted that definition?  Lawyers are supposed to be wordsmiths.  Could the phrase “the primary purpose of which is for the retention of the lawyer or law firm” be any more awkward and obscure?

  1. face it: “primary purpose” will often be a bit hard to discern (but see, Prof B, who said in 2005 that “Figuring out what the lawyer’s intent is here strikes me as no more difficult than figuring out intent anywhere in the law.”).
  2. “for the retention of the lawyer” is a strange way to say that the lawyer is seeking new clients or attempting to increase sales of his or her services.  Does a campaign aimed at building a brand, so that you can charge higher fees (as opposed to attracting new clients), come within the purpose of ”retention of the lawyer”?
  3. alkasG Do the drafters know what “retention” means to most of the English-speaking world?  We usually try to avoid rentention; when we’re seeking it, it’s usually in the context of lower digestive tract disturbances, or seasickness.  The Quick Definition at OneLook Dictionary says: “the act of keeping in your possession; the power of retaining and recalling past experience; the power of retaining liquid”.   The American Heritage Dictionary does say that “retention” is the “act of retaining” — but, their definition of retain gives three other meanings before it comes to “To hire (an attorney, for example) by the payment of a fee.”  Of course, the advertising lawyer doesn’t want to hire an attorney.
  4. Clients don’t give money to personal injury lawyers when they hire them.  Does that mean those noisy tv commercials aren’t seeking retention?
  5. There is a legal Doctrine of Retention, but . . . .
  6. Sure, some of the above points are silly.  But, so is the Immaculate Conception approach to defining advertising.  The relevant lawyer communications are seeking to attract or keep clients.  Are we (still) ashamed to admit it?

honest!

b)  Why exclude “communications to existing clients or other lawyers“?  Model Rule 7.1 doesn’t distinguish between prospective and existing clients.  Shouldn’t both groups be protected against deceptive, unfair, or misleading communications meant to sell a lawyer’s services?  In a marketplace where firms are fighting harder and harder to keep the clients they already have, don’t we care if a lawyer communicates to current clients in a way that might suggest a special ability to get results from a tribunal?  Or that fails to have a factual basis for a testimonial, or to state that a person was paid to provide an endorsement?

tiny check c) Since weblogs are explicitly included within the definition of “Computer-accessed communication” in Rule 2000.1(l), it appears that some weblog content will (and should) be deemed to be advertising, despite the narrower scope of the rule.  Many blawg gurus might rue the day they decided to promote weblogs as great client magnets.  Despite arguments like those originally presented by Prof. Bainbridge, every weblog is not an advertisement.  An f/k/a posting in June 2005 gives some suggestions for the kinds of weblog content that should or shouldn’t be considered advertising.  Good luck (to prosecutors and their targets) in arguing about the “primary purpose” of any part of a weblog or particular posting.

Here are a few other internet-related provisions: podiumF

tiny check Approval/Retention of Ads: Section 1200.6 [DR 2-101] (k) All advertisements shall be pre-approved by the lawyer or law firm and . . . 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.

tiny check Pop-Up Ads/MetaTags: Section 1200.6 [DR 2-101] (g) 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 or other internet presence; or (2) meta tags or other hidden computer codes that, if displayed, would violate a disciplinary rule.

tiny check Domain Names: Section 1200.7 [DR 2-102] (e) A lawyer or law firm may utilize a domain name for an internet web site that does not include the name of the lawyer or law firm provided: (1) all pages of the web site clearly and conspicuously include the actual name of the lawyer or law firm; (2) the lawyer or law firm in no way attempts to engage in the practice of law using the domain name; (3) the domain name does not imply an ability to obtain results in a matter; and (4) the domain name does not otherwise violate a disciplinary rule.  (f) A lawyer or law firm may utilize a telephone number which contains a domain name, nickname, moniker or motto that does not otherwise violate a disciplinary rule.

d) It would be difficult to find a Rule quite as poorly drafted and conceived as Section 1200.6(c)(5):   ”An advertisement shall not: . . . (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. .”  I feel much more dignified and edified already; don’t you?  Of course, when I want to see “lawyers exhibiting characteristics clearly unrelated to legal competence,” I stop by Family Court.

city lights –
the brightest are all
selling something

snowing hard
no road sign
to obey

. . by John Stevenson, Upstate Dim Sum

Call us Pollyannas, but we (see this and that prior post, plus Elephant and Cowgill) believe consumers can figure out for themselves whether the on-screen characteristics of ”Heavy Hitters“ (such as NY Capital Region’s Martin Harding & Mazzotti), or “Hammers“, or pit bulls, are relevant to their selection of a lawyer.

e) Similarly, the rules still contain the silly ban on utilizing “a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.” Sec. 2000.6(c)(7) It’s so good to know consumers will be protected from legal “Heavy Hitters”.  See f/k/a‘s posting from May 2006, in response to South Carolina’s SCotching Lawyer Nicknames.  You’ll find a few ideas for getting around the prohibition.  When are regulators going to treat consumers as if they have a bit more than half a brain?

honest! g) Finally, it seems to this observer that the New York State Bar Association is trying a bit too hard to take credit for the revisions to the proposed rules, which have led to a more balanced (less rabid) rule. (press release, Jan. 4, 2007) In 2005, NYSBA established “a task force to develop rules, standards and mechanisms aimed at limiting lawyer advertising to the fullest extent permitted, within the limitations of the First Amendment.” (press release, June 1, 2005) The Task Force then produced a 130-page Report that was submitted to the judiciary, requesting far stricter regulation of lawyer ads (press release, Feb. 1, 2006), and which included some elements more draconian than the resulting initial proposal by the courts.  Given that history, the current Bar Asociation president might want to downplay the boast that the final provisions ”reflect extensive consultations that the Association had with the Presiding Justices after the initial proposals were issued last fall.”

tiny check NYSBA says the new rules will result in “more dignity for the profession.”  I continue to believe that better service to clients (who are our bosses and our buyers) and more price and quality competition is the best way to improve the image of the legal profession, and to give it genuine dignity.   Of course, we should police against true deception.  But the profession earns its reputation every day, one lawyer at a time, treating one client at a time.  No retentive obsession with a grandiose notion of dignity will produce a reputation for lawyers that is any better than our dedication to our clients and our honesty deserve.

typo?
her lawyer listed
under “Martial Law”

. . . . . . . . . . . . . . . . by dagosan

9 Comments

  1. New York lawyer advertising rules…

    New York’s court system has adopted final rules on attorney advertising, effective Feb. 1, which were narrowed significantly from earlier proposals in part to answer criticisms that they would tend to throttle legal blogging and other participation in…

    Comment by PointOfLaw Forum — January 6, 2007 @ 10:17 am

  2. Good piece on the new lawyer advertising rules. In my own blog, I point out that it will be difficult to define a “close friend” when the rules speak about who a lawyer can solicit.

    Comment by Rich Klein — January 6, 2007 @ 9:43 pm

  3. Thanks, Rich. Some wags would say, of course, that no lawyer has a “close friend,” making the exception unnecessary (and misleading!).

    Comment by David Giacalone — January 6, 2007 @ 11:10 pm

  4. And there’s also some discussion about what qualifies as a “domain name”. Logic would say to use the InterNIC or WIPO definitions, but perhaps they’ll google “domain name” and “definition” and see that some sites define it as a web address, or everything before the dot-com, and then something like LawyerPseudonymHere.livejournal.com or LawyerName.wordpress.com will be a domain name even if all it’s used for is posting photos of cats and then when the Bonsai Cats get posted there will be an accusation that the lawyer posted something false on said blog in violation of the rules.

    Comment by Heidi Tandy — January 8, 2007 @ 9:41 am

  5. [...] Probably not, anyway.  We were all upset and flustered over the proposed new rules.  As actually enacted, they were considerably more mild and don’t seem to affect most law bloggers in what we do, mostly.  Probably.  The f/k/a . . . blog at Harvard law takes a closer, more detailed look. [...]

    Comment by LIKELIHOOD OF CONFUSION » Blog Archive » New York ethics rules do not destroy blogs as we know them — January 17, 2007 @ 7:08 pm

  6. [...] New York ethics rules do not destroy blogs as we know them Probably not, anyway.  We were all upset and flustered over the proposed new rules.  As actually enacted, they were considerably more mild and don’t seem to affect most law bloggers in what we do, mostly.  Probably.  The f/k/a . . . blog at Harvard law takes a closer, more detailed look. [...]

    Comment by LIKELIHOOD OF CONFUSION » Blog Archive » Blog items here on the proposed anti-law-blogging New York Bar ethics rules — April 1, 2007 @ 10:35 pm

  7. I was jusy searching news about domain names and came across this post.

    I found this line interesting: “A lawyer or law firm may utilize a domain name for an internet web site that does not include the name of the lawyer or law firm provided.”

    With their profession, they are locked down on how they choose to advertise their services. Naturally, if a lawyer you are looking for you will take a look at their name in Google. If they own the domain name that has the lawyers name it will turn out as #1 and the person will find what they are looking for.

    Maybe I just don’t understand the logic behind this, but still interesting that they are limited in this way.

    Comment by DAR — October 15, 2008 @ 3:45 pm

  8. Hello, Domain. The rule does not ban using a domain name that incorporates the lawyer’s name. It sets requirements that must be met if you use a domain name that does not include your name — e.g., SlickLawyer.com.

    p.s. I prefer Commentors who use a personal name and not the name of their website or business.

    Comment by David Giacalone — October 15, 2008 @ 4:13 pm

  9. Sorry about using the business name, just my standard practice when leaving comments. I’ve changed it here to my name.

    It looks like I read that line incorrectly then. Now that I’ve read it again, what you are saying is how I should have originally read it. Lot of sectors do this then, including financial service sector I believe.

    Comment by Michael K — October 15, 2008 @ 10:20 pm

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