Proposed Changes to New York's Rules for Lawyer Advertising

New York State has proposed some changes to the rules for lawyer advertising. The proposed changes include a number of changes directed specifically toward web-based communications or solicitations. I've hightlighted some of the proposed changes here, but to view all of the proposed changes, see the link above. Every lawyer needs to be aware of the proposed rules, since they apply not only to lawyers that practice in New York, but also to lawyers that solicit business in New York, which, according to the rules, would include any lawyer whose advertisements on the web can be viewed in New York.

The proposed changes define 'advertisement' as any communication about the lawyer, law firm, or the about the lawyer or law firm's servivces. A solicitation is directed to a specific recipient or group of recipients.

"Computer accessed communications' include web sites, list serves, email, and search engines.

A lawyer or law firm that uses a domain name that doesn't include the name of the lawyer or law firm must not only display the name of the lawyer/firm on every page of the site, but the name must be in a type size as large as the largest type size used on the site.

An advertisement or solicitation cannot include an endorsement of, or a testimonial about a lawyer or firm from a current client. Presumably, this means that even if the firm has successfully concluded a matter for a client, the firm cannot use an endorsement or testimonial from that client if there are other pending matters being handled by the firm.

Paid endorsements are prohibited under the proposed rules. Lawyers will be prohibited from using spokespeople who are not attorneys and whose voice or image is recognizable to the public, unless the voice or image is of an actual former client. Firms are also prohibited from using non-lawyers to depict lawyers, and from using non-clients to portray clients. Portraying judges, depicting the use of courtrooms or courthouses, or using a fictitious name to refer to lawyers that are not associated within a firm are all prohibited.

Attorneys are required to label advertisements, including "computer-accessed communications'"must be labeled "attorney advertising" on the first page. Packaging utilized to transmit advertisements must be labeled "attorney advertising" in red ink. Emails that are considered advertisments must contain 'attorney advertising' in the subject line.

Pop-up advertising is prohibited. While most would say this is only a measure to prohibit spam, pop-up technology is often used for other purposes. Are all of these purposes prohibited? The new rules also imposes waiting periods for advertising or solicitation resulting from a certain event.

Attorneys are required to retain copies of all advertisements or solicitations, including computer-accessed ones (which presumably would include emails or postings to list serves), for a period of three years. Attorneys must also retain a copy of the list of the names and addresses of recipients of the list. The list must be retained for three years.

In the case of web sites, attorneys would be required to retain a printed copy of each web page for at least one year from the date of the first publication or modification.

Copies of every advertisement or solicitation must be filed with the disciplinary committee at the time of its initial dissemination. With the exception of websites and web pages, the filing must be in the form that the solicitation was initially disseminated. For radio and television advertisments, the lawyer must also file a transcript and a listing of the media outlets used, and the frequency and times the advertisement will appear.

This filing requirement would, presumably, require a lawyer to make a filing every time a web page was updated, which, for bloggers, could be almost every single day (if not more). Does this mean that a lawyer would need to make a filing any time a fellow blogger posts a comment or a trackback to their blog? And what of those firms that have 'scrolling' information or up to the minute news on their sites? Do the new rules effectively ban such features by requiring the lawyer to make a filing every time something different appears on the site?

The proposed rules also require specific disclosures with regard to what an advertisement that discusses fees must disclose.

One provision states that a lawyer's solicitation may not "include the reenactment of any events or scenes or pictures or persons that are not actual or authentic." Does this mean that a lawyer's advertising or website cannot include 'stock' photographs, but must only include photographs of actual lawyers in the firm, clients (presumably only former clients)? 

What exactly does 'actual or authentic' mean? Is this meant only to ban dramatizations of accidents or legal situations? If so, the rule appears to be broader in scope than intended. In fact, many of the rules appear to be more broad than necessary to protect the public, which is the stated reason behind the rules.

A number of bloggers have already jumped on these rules, and there are numerous criticisms out there, including comments on Jim' Calloway's Law Practice Tips blog, Peter Boyd's PaperStreet blog, Carolyn Elefant of My Shingle, and Ed Poll of LawBiz. What are your thoughts?