{"id":7305,"date":"2007-01-06T03:28:31","date_gmt":"2007-01-06T08:28:31","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2007\/01\/06\/new-york-lawyer-ad-rules-retention"},"modified":"2011-08-05T14:53:53","modified_gmt":"2011-08-05T18:53:53","slug":"new-york-lawyer-ad-rules-retention-and-more","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2007\/01\/06\/new-york-lawyer-ad-rules-retention-and-more\/","title":{"rendered":"New York lawyer ad rules — “retention” and more"},"content":{"rendered":"

Hanno Kaiser at Antitrust Review<\/a><\/em> reported\u00a0on Jan. 4th\u00a0that the new advertising rules<\/strong><\/a> for New York lawyers have been finalized by the State’s judicial governing body, and will be effective on Feb. 1, 2007.\u00a0 Hanno notes that the controversial\u00a0definition of “advertising” has been narrowed greatly and that the\u00a0“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.”\u00a0 (Click for the New York State Bar Association’s Jan. 4, 2007 press release<\/a> about the new rules, and for a redlined edition<\/a> of the rules, showing changes from the earlier proposal; update<\/em>: 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<\/a>,” New York Law Journal\/Law.com<\/em>, January 8, 2007)<\/p>\n

\"ScaliaGesture\" A few months ago, when it appeared that the proposed NY rules\u00a0would define all lawyer-operated weblogs as advertising and to threaten their existence, much of the blawgiverse rose up\u00a0righteously to complain. E.g<\/em>.,\u00a0Consumer Law & Policy Blog<\/em><\/a>, Point of Law<\/em><\/a>,\u00a0 Legal Blog Watch<\/a><\/em>, Volokh Conspiracy<\/em><\/a>, Sui Generis<\/a>, Trademark Blog<\/em><\/a>.<\/em> The f\/k\/a<\/em> Gang has been warning about the\u00a0desire of the New York Bar’s “Dignity Police”\u00a0to over-regulate (and discourage) lawyer advertising for years. (see, e.g.,<\/em> here<\/a>; the same\u00a0tendency can be seen in many other states<\/a>)\u00a0\u00a0 I’m sure there will be much more commentary and parsing of the final advertising regs.\u00a0[update<\/em> (Jan. 9, 2007): Nicole Black at Sui Generis<\/em><\/a> has compiled links to “substantive commentary” about the new\u00a0ad rules.]\u00a0I wanted to make a few comments while the Rules\u00a0are still hot off the pixel press.<\/p>\n

Here’s the new definition of “advertisement” (22 NYCRR 1200.1<\/a>):<\/p>\n

(k) “Advertisement\u201d 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<\/em> or law firm. It does not include communications to existing clients or other lawyers. (emphasis added)<\/p><\/blockquote>\n

\"NoloShark\" a) We usually hate to be snarky (or sharky), but who<\/em> drafted that definition?\u00a0 Lawyers are supposed to be wordsmiths.\u00a0 Could the phrase “the primary purpose of which is for the retention of the lawyer <\/em>or law firm” be any more awkward and obscure?<\/p>\n

    \n
  1. face it: “primary purpose<\/em>” will often be a bit hard to discern (but see, Prof B<\/a>, who said\u00a0in 2005 that “Figuring out what the lawyer\u2019s intent is here strikes me as no more difficult than figuring out intent anywhere in the law.”).<\/li>\n
  2. “for the retention<\/em> of the lawyer” is a strange way to say that the lawyer is seeking new clients or attempting to increase sales of\u00a0his or her services.\u00a0 Does a campaign aimed at building a brand, so that you can charge higher fees (as opposed to attracting new clients), come within the\u00a0purpose of\u00a0“retention of the lawyer”?<\/li>\n
  3. \"alkasG\" Do the drafters know what “retention<\/em>” means to most of the English-speaking world?\u00a0 We usually try to avoid rentention; when we’re seeking it,\u00a0it’s usually in the context of lower digestive tract disturbances, or seasickness. \u00a0The Quick Definition at OneLook Dictionary<\/a><\/em> says: “the act of keeping in your possession; the power of retaining and recalling past experience; the power of retaining liquid”.\u00a0\u00a0 The American Heritage Dictionary<\/em> does say that “retention” is the “act of retaining” — but, their definition of retain<\/a> gives three other meanings before it comes to “To hire (an attorney, for example) by the payment of a fee.”\u00a0\u00a0Of course, the advertising lawyer doesn’t want to hire an attorney.<\/li>\n
  4. Clients don’t give money to personal injury lawyers when they hire them.\u00a0 Does that mean\u00a0those\u00a0noisy tv commercials aren’t seeking retention?<\/li>\n
  5. There is a legal Doctrine of Retention<\/a>, but . . . .<\/li>\n
  6. Sure, some of the above points\u00a0are silly.\u00a0 But,\u00a0so is the\u00a0Immaculate Conception approach to defining advertising.\u00a0\u00a0The relevant\u00a0lawyer communications are\u00a0seeking to attract or keep clients.\u00a0 Are we (still) ashamed to admit it?<\/li>\n<\/ol>\n

    \"honest!\"<\/p>\n

    b) \u00a0Why exclude “communications to existing clients or other lawyers<\/em>“?\u00a0 Model Rule 7.1<\/a> doesn’t distinguish between prospective and existing clients.\u00a0 Shouldn’t both groups be protected against deceptive, unfair, or misleading communications meant to sell a lawyer’s services?\u00a0 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?\u00a0 Or that fails to have a factual basis for a testimonial, or to state that a person was paid to provide an endorsement?<\/p>\n

    \"tiny c) Since weblogs<\/em> are explicitly included within the definition of \u201cComputer-accessed communication<\/em>\u201d in Rule 2000.1(l)<\/a>, it appears that some weblog content\u00a0will (and should) be deemed to be advertising, despite the narrower scope of the rule.\u00a0 Many blawg gurus might rue the day they decided to promote weblogs as great client magnets.\u00a0\u00a0Despite arguments like those originally presented by Prof. Bainbridge<\/a>, every weblog is not an advertisement. \u00a0An f\/k\/a<\/em> posting in June 2005<\/a> gives some suggestions for the kinds of weblog content that should or shouldn’t be considered advertising.\u00a0 Good luck (to prosecutors and their targets) in arguing about the “primary purpose” of any part of a weblog or particular posting.<\/p>\n

    Here are a few other internet-related provisions: \"podiumF\"<\/p>\n

    \"tiny Approval\/Retention<\/em> of Ads: Section 1200.6<\/a> [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.<\/p>\n

    \"tiny<\/em> Pop-Up Ads\/MetaTags<\/em>: Section 1200.6<\/a> [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\u2019s own web site or other internet presence; or (2) meta tags or other hidden computer codes that, if displayed, would violate a disciplinary rule.<\/p>\n

    \"tiny<\/em> Domain Names<\/em>: Section 1200.7<\/a> [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.\u00a0 (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.<\/p><\/blockquote>\n

    d) It would be difficult to find a Rule quite as poorly drafted and conceived as Section 1200.6(c)(5)<\/a>:\u00a0 \u00a0“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. .”\u00a0 I feel much more dignified and edified already; don’t you?\u00a0 Of course, when I want to see “lawyers exhibiting characteristics clearly unrelated to legal competence,” I stop by Family Court.<\/p>\n

    city lights —
    \nthe brightest are all
    \nselling something<\/p><\/blockquote>\n

    snowing hard
    \nno road sign
    \nto obey<\/p>\n

    . . by\u00a0John Stevenson<\/a>, Upstate Dim Sum<\/em><\/p><\/blockquote>\n

    Call us Pollyannas, but\u00a0we (see\u00a0this<\/a> and that\u00a0prior post<\/a>, plus Elephant<\/a> and Cowgill<\/a>)\u00a0believe consumers can figure out for themselves whether the on-screen characteristics of\u00a0“Heavy Hitters<\/a>”\u00a0(such as NY Capital Region’s Martin Harding & Mazzotti<\/a>), or “Hammers<\/a>“, or pit bulls<\/a>,\u00a0are relevant to their<\/em> selection of a lawyer.<\/p>\n

    e) Similarly, the rules still contain the silly\u00a0ban\u00a0on utilizing “a nickname, moniker<\/em>, motto or trade name that implies an ability to obtain results in a matter.”\u00a0Sec. 2000.6(c)(7)<\/a> It’s so good to know consumers will be protected from legal “Heavy Hitters”.\u00a0 See\u00a0f\/k\/a<\/em>‘s posting from May 2006, in response to South Carolina’s SCotching Lawyer Nicknames<\/a>.\u00a0\u00a0You’ll find\u00a0a few ideas for getting around the prohibition.\u00a0 When are regulators going to treat consumers as if they have a bit more than half a brain?<\/p>\n

    \"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.\u00a0(press release<\/a>, Jan. 4, 2007)\u00a0In 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<\/a>, June 1, 2005) The Task Force then produced a 130-page Report<\/a> that was submitted to the judiciary, requesting far stricter regulation of lawyer ads (press release<\/a>, Feb. 1, 2006), and which included some elements more draconian than the resulting initial proposal by the courts.\u00a0 Given that history, the current Bar Asociation president might want to downplay the boast that the final provisions\u00a0“reflect extensive consultations that the Association had with the Presiding Justices after the initial proposals were issued last fall.”<\/p>\n

    \"tiny NYSBA says the new rules will result in “more dignity for the profession.”\u00a0 I continue to believe that\u00a0better 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.\u00a0\u00a0 Of course, we should police against true deception.\u00a0 But the profession earns its reputation every day, one lawyer at a time, treating one client at a time.\u00a0 No retentive obsession with\u00a0a grandiose notion of dignity will produce a reputation for lawyers that is any better than our dedication to our clients and our honesty deserve.<\/p>\n

    typo?
    \nher lawyer listed
    \nunder \u201cMartial Law\u201d<\/p>\n

    . . . . . . . . . . . . . . . . by\u00a0dagosan<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

    Hanno Kaiser at Antitrust Review reported\u00a0on Jan. 4th\u00a0that 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.\u00a0 Hanno notes that the controversial\u00a0definition of “advertising” has been narrowed greatly and that the\u00a0“focus of the new rules is less on enforcing […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[900],"tags":[],"class_list":["post-7305","post","type-post","status-publish","format-standard","hentry","category-viewpoint"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-1TP","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7305","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=7305"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7305\/revisions"}],"predecessor-version":[{"id":12601,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7305\/revisions\/12601"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=7305"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=7305"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=7305"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}