Last week I summarized the changes to the New York Code of Professional Responsibility governing lawyer advertising. But I think the section on solicitation (DR 2-103) merits some additional discussion.
DR 2-103(a) prohibits solicitation "by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client." As one legal blogger, Rich Klein points out, 'close friends' is an ambiguous term. Who determines whether the relationship can be considered 'close?'
DR 2-103(a) also raises concerns in that it is unclear what is meant by 'real-time' or 'interactive' computer-accessed communications. Are email messages considered 'real-time' or 'interactive' computer-accessed communications? If so, the Disciplinary Rules would seem to ban any solicitation sent via email, except those to the specified recipients above, (or to writings "prepared and delivered in response to a specific request of a prospective client," which are not considered solicitations at all pursuant to DR 2-103(b)).
As I indicated in my previous post, DR 2-103(b) defines a soliciation as an "advertisement...the primary purpose of which is the retention of the lawyer or law firm..." Again, how is the primary purpose determined? Is it in the eye of the recipient? Is there some 'objective' standard to be applied to determine primary purpose?
To complicate matters further, the definition of solicitation continues "...and a significant motive for which is pecuniary gain" (emphasis added). Thus, not only must the advertisement be for the primary purpose of retention of the lawyer, but a 'significant motive' for the solicitation must be pecuniary gain. How does one determine whether there is a 'significant' motive for pecuniary gain? What qualifies as 'significant?'
When a particular advertisement qualifies as a 'solicitation' pursuant to DR 2-103, it must be filed with the disciplinary committee at the time of its dissemination, and a list containing the names and addresses of the recipients must be retained for three years after the last date of the dissemination.
Assuming that email does not qualify as a prohibited solicitation (i.e. 'real time' or 'interactive' computer accessed communications), the same rules apply.
For those lawyers who send regular newsletters or targeted mailings, it would appear that all of the above solicitation rules would apply, unless the newsletter was directed only to recipients exempted under the rule. However, it remains to be seen whether the use of an 'opt-in' list, such as where an individual subscribes to the newsletter or 'opts in', providing the lawyer or firm with permission to send the newsletter, the newsletter would then be considered a "writing prepared and delivered in response to a specific request of a prospective client."
But what is a 'specific request?' Does the rule require a 'specific' request for each individual communication?
There are many questions that still need to be answered, and issues to be clarified with regard to these new rules and how they will be applied. I, for one, will be watching to see not only what lawyers do in response to the new rules, but also what opinions are issued after the rules are implemented.