2007 Changes to the New York Ethical Rules Re: Lawyer Advertising

As I reported here yesterday, New York has finally published the changes to the New York Code of Professional Responsibility, which will go into effect on February 1, 2007. Although there are significant changes to the proposed rules which received a lot of publicity and were a hot topic of discussion at the end of 2006, the rules still represent changes that are important for all practitioners.

The new definition of 'advertisement' is:

"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."

Although this new definition is good news for lawyers, in contrast to the proposed rule which included communications to existing clients in the definition of 'advertising,' there is some ambiguity in the definition, and there is no guideline as to how it will be determined whether a particular communicaiton has the 'primary purpose' of retaining the lawyer or firm.

The definitions section provides a separate definition of 'computer accessed communications,' however, the remainder of the Code references 'advertisements' and 'solicitations,' but does not reference 'computer accessed communications' specifically, except in rare instances.

DR 2-101 provides guidelines for lawyer advertising. It sets forth both categories of information that may be contained in an advertisement AND those items that are prohibited. Once again, this section of the rules appears to be a significant improvement over the proposed rules.

Some highlights from this section:

Testimonials from clients regarding pending matters are prohibited;

Paid endorsements or testimonials are permitted so long as the advertisement discloses that it is a paid endorsement;

The use of actors to portray lawyers and clients is permitted, so long as the advertisement discloses that they are actors;

Advertising may include statements reasonably likely to create an expectation of results or which characterize the quality of the lawyer's services so long as these statements do not violate any other section and they can be factually supported and they contains a disclaimer, "prior results do not guarantee a similar outcome."

Lawyers must also be sure to label all of their advertising "Attorney Advertising" on the first page (or home page of a website), and email advertising must contain the words, "Attorney Advertising" in the subject line.

Copies of advertisements must be retained by the law firm for three years after their initial dissemination (one year for computer accessed communications). Lawyers and law firms with websites must preserve the contents of their site at initial launch, at the time of any major content revision or re-design, or at least every 90 days. This is a significant change, and lawyers should put a structure into place as soon as possible to ensure that they capture and retain this information.

Lawyers and law firms should take care to review all of their advertising and marketing materials, as the rule requires. Having an outside individual or firm create and disseminate the advertisement will not permit the lawyer to avoid responsibility for ensuring that the advertisement complies with the rules.

DR 2-102 has been updated to include rules about internet domain names.

DR 2-103 is the section of the Code which deals with 'solicitation,' which is defined as an advertisement initiated by a lawyer or firm targeted to a specific recipient or group of recipients, their family members or legal representatives, the primary purpose of which is the retention of the law firm. A communication is not considered a solicitation if it is in response to a specific request of a prospective client.

In contrast to advertisements, solicitations must be filed with the disciplinary committee, and a copy of the solicitation, along with a list of recipients must be retained by the lawyer or firm for a period of not less than three years.

The rules regarding solicitations do not apply where the recipient is a close friend, relative, former or existing client, they do not apply to a law firm's website, unless the site is directed or targeted at prospective clients affected by an actual event or an identifiable defendant.

Presumably, a lawyer or law firm that created a website targeted towards individuals affected by a specific event, such as Hurrican Katrina, or a specific defendant, such as those affected by an E-coli outbreak at a particular restaurant, would be considered a solicitation and would be subject to the rules contained in this section.

Similarly, it would seem that any direct mail marketing which targets potential clients (as oppposed to existing or former clients) would be subject to the solicitation rules as well.

Notably, the rule prohibits solicitation in person, by telephone contact or real-time computer-accessed communication (i.e. according to my reading of the rules, cold calling is prohibited) unless the recipient is a former or existing client, relative or close friend.

The solicitation rules also prohibit contacting prospective clients in personal injury or wrongful death matters within the first 30 days following an event or incident, unless the claim requires a filing within 30 days as a legal precedent to bringing the claim, in which case the waiting period is 15 days.

DR 7-111 is a new section regarding communication after incidents involving personal injury or wrongful death. The section also imposes a 30 day waiting period for unsolicited communication to those involved in the incident, as well as their employees, legal representatives or family members. Subsection (b) notes, however, that the provision not only applies to attorneys seeking to be retained by the injured party, but also applies to lawyers or their agents, employees, etc. who represent "actual or potential defendants or entities that may defend and/or indemnify said defendants."

Thus, the new section targets not only what may be perceived as the 'ambulance chasing' lawyers seeking to take advantage of the injured and their family members immediately after an accident, but also at the insurance companies or representatives of potential defendants seeking to obtain a release in exchange for a minimal settlement before the injured party and/or family has an opportunity to fully evaluate the claim and the injuries involved. This is a curious addition to the Code of Professional Responsibility, as it purportedly governs the actions of non-lawyers (such as insurance companies and their representatives) who may not be under the control of lawyers.

** This post is not intended to serve as legal advice, and is not a comprehensive or exhaustive review of the changes to the rules, which can be found in their entirety here. I encourage all practitioners to review these rules themselves.