Madigan responds to f/k/a on NYSBA’s advertising position
update (Aug. 22, 2007): NYSBA President Madigan has continued our discussion about the Association’s position on lawyer advertising. She begins a lengthy comment at her weblog with ” Au contraire, reader Giacalone, my response, and a careful review of our Task Force on Advertising Report, does indeed respond to the concerns articulated in your blog entry.” She also states that “The consumer is better served by the personal or professional referral” to a lawyer than by “choos[ing] to make decisions based upon print or broadcast advertising.” Well, I am pretty sure I have read both Ms. Madigan’s statements and the Task Force Report quite carefully, and I’m still less than clear on the NYSBA policy. Here is the rebuttal Comment that I left at her weblog yesterday evening:
David Giacalone Comment at the NYSBAPresident’s Blog: Thanks for the further clarification. Let me explain why I am still a bit uncertain of your position. The Task Force, and then the House of Delegates by approving the Task Force Report, did two things: (1) stated that they did not support “adding content-based restrictions” to the Advertising Rules; but (2) adopted “the Monroe County Bar Association guidelines regarding advertising as the official advertising guidelines and policy of the State Bar.”
The MCBA Guidelines — which are still the official NYSBA Advertising Policy and Guidelines — do contain content restrictions (indeed, vague ones that are far too subjective and difficult to follow or apply). As I have argued at my weblog, quoting those Guidelines, they call for lawyers and the public to reject ad content that is “irrational” or not “relevant to the thoughtful selection of counsel,” or that might offend a segment of the community, or “foster disrespect for . . . the legal profession.”
Your own weblog discussion after the Alexander Case continues to muddy the waters. While it declares agreement with the court decision (agreeing, I guess, that the Court correctly applied First Amendment law), your posting (a) embraces the Task Force approach; (b) declares that “attorney advertising SHOULD be done in a manner that is dignified and balanced, enabling the consumer to make informed decisions about securing quality legal representation.”; and (c) bemoans the fact that “Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster.”
So, we have a powerful bar association reluctantly agreeing that the State cannot ban content that is neither false nor misleading, but giving clear signals that ads “should” be relevant and dignified to be ethical. At best, this is a mixed message. It suggests that non-decepetive ads that the Bar’s “Dignity Police” have been complaining about for years (including the innocuous “Heavy Hitters” ads) are still deemed inappropriate, or somehow less than fully ethical, in the eyes of NYSBA, because they are not sufficiently relevant or dignified, and purportedly hurt the reputation of the Bar.
Finally, I think you are being a bit too dismissive of consumers who use ads to assist in choosing a lawyer. As I discuss here, many average consumers have no family lawyer to ask for a recommendation and have no way to judge how trustworthy a friend’s recommendation may be, or how objective a lawyer’s referral may be. Also, for the reasons stated here, Lawyer Referral Programs are only slightly better, in many instances, than using the Lawyers by Practice Area section of the Yellow Pages.
The New York State Bar Association and Pres. Madigan can help clear this up by officially declaring that the MCBA Advertising Guidelines are no longer the “official guidelines and policy” of NYSBA. At the very least, the portions of the Guidelines captioned “Rational” and “Relevant” should be deleted.
Our post on Aug. 11, 2007 asked “after Alexander v. Cahill, where does NYSBA stand on lawyer advertising?“. We took a look at activity of the Bar Association since 2005 concerning the regulation of lawyer ads, and quoted from a press release and a weblog posting by NYSBA President Kathryn Grant Madigan. This afternoon, at the NYSBAPresident’s Blog, Ms. Madigan graciously responded to our posting, in a piece entitled “Law Advertising II” (Aug. 20, 2007). “For openers” she explains:
“[T]he State Bar’s position on lawyer advertising has not wavered. Since issuance of the Task Force on Lawyer Advertising in October, 2005, the State Bar has undertaken its mission to provide guidance to the legal profession on this important issue that goes to the heart of the profession.”
She closes by saying:
“I did not and do not downplay the role of the State Bar. Indeed I applaud it.
“Finally, let me reiterate what I stated in my initial blog post on this issue. Going forward, we welcome the opportunity to continue to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.”
Unfortunately, neither those statements nor the rest of Madigan’s post answers my substantive questions from Aug. 11th, when I inquired:
In the wake of the decision in Alexander, and with her embrace of the 2005 Advertising Task Force Report, we need to know the position of Pres. Madigan and her Bar Association on lawyer advertising and free speech. Do they still equate “irrelevant” with deceptive? Do they plan to step up their misleading “educational” campaign to convince the public and lawyers that there is something unethical or inappropriate about advertising that is truthful but somehow deemed to be insufficiently dignified or relevant?
While I can readily believe that the State Bar’s unwavering position is “to provide guidance” about legal advertising, I was hoping to find out just what that guidance is after Alexander.
I accept Pres. Madigan’s correction to my assertion that former NYSBA President A. Vincent Buzard was active in passing the Monroe County Bar Association guidelines. However, I want to point out that Mr. Buzard is a former president of MCBA. Moreover, just one day before he became the NYSBA president and announced his intention to establish an Advertising Task Force, he is quoted in the Rochester Democrat and Chronicle explaining that he supported having a State Bar program like the Monroe Country Bar Association’s ad guidelines. (Democrat & Chronicle, “Bar leader is advocate for lawyers,” May 30, 2005; link is no longer active) Although the MCBA Guidelines’ enforcement regime had already been aborted by MCBA, and despite the fact that much of the Guidelines was aimed at the content of ads, the NYSBA Task Force adopted them “as the official policy of the State Bar.”
As I noted on Aug. 11, by adopting the MCBA Guidelines, the official position of the NYSBA is that lawyer advertising, to be fully ethical, must not only be “true, accurate and clear,” but also “fair,” “rational” and “relevant to the thoughtful selection of counsel.” Therefore, despite Fn. 1 in Pres. Madigan’s posting today, it appears that the Task Force and NYSBA do indeed favor what the Alexander court described as the banning of “irrelevant, unverifiable and non-informational ads.” Similarly, I continue to believe that the Task Force misinterpreted either the Guidelines or the Code of Ethics when it asserted that the MCBA Guidelines “are a plain language, straightforward articulation of the existing Code of Professional Responsibility Rules concerning advertising.” Madigan made the same assertion today. So, I ask again: does NYSBA believe that an ad must be dignified and “relevant to the thoughtful selection of counsel” to be considered ethical?
Finally, Ms. Madigan tells us that “the State Bar agreed that ‘to the extent that the MCBA guidelines were consistent with the proposed rules’ they would be adopted, but otherwise, ‘they were to be amended and supplemented’ .” She has not suggested that the Bar Association believes the Guidelines to be inconsistent with the final rules, nor with Alexander v. Cahill. Further clarification would be helpful. And, perhaps it will be forthcoming, as Ms. Madigan noted in today’s posting that:
“The State Bar is the drafter of the Ethical Considerations that accompany all of the disciplinary rules. For this reason, you should all watch for the final Official Commentary/Ethical Considerations to the rules that will be considered by the House of Delegates at its next meeting on November 3rd, which are being drafted by members of the Task Force and the Committee on Standards of Attorney Conduct.”
I’m grateful Bar President Madigan was willing to take the time to respond, and to use her weblog to answer my inquiries. It would be great to hear more about the Bar’s actual substantive positions on what does and does not constitute deceptive, misleading, or otherwise unethical advertising.
The Madigan responds to f/k/a on NYSBA's advertising position by David Giacalone, unless otherwise expressly stated, is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.