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Who Do These New York Bar Rules Target – Let’s Not Kid Ourselves

by Carolyn Elefant on June 17, 2006 · 18 comments

in Big Law/Small Law, Ethics & Malpractice Issues, Marketing Ethics

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I have to confess that when I initially heard about New York’s proposed gag rule on attorney advertising, I suspected that it was just another way to perpetuate the biglaw/smallfirm double standard by targeting forms of advertising like websites and weblogs that have proven especially beneficial for small law firms.  And indeed, Dennis Kennedy fears that one consequence of the rules, which are draconian with respect to Internet marketing, will be to protect established practices from competition, as does Peter Boyd who dissects the problems with the rule, section by section.   Kevin O’Keefe fears that the rule will lead to micromanaging, which is also a problem for solos.

But now, having reviewed the rules and some of the websites and online ads of biglaw firms, Arent Fox (whose partner served on the rulemaking committee) and Paul Weiss, whose partner heads the NY State Bar, it appears that even these firms may run afoul of the new regulations.  For example, consider this photo at Arent Fox’s website.  Doesn’t this constitute a prohibited “reenactment of any events or scenes…that are not actual or authentic?” How about this page of the website, which shows photos and lists the names of the five Arent Fox founders, even though they’re not listed as attorneys with the firm. Does this run afoul of the prohibition that an ad cannot otherwise imply that lawyers are associated in a firm? And what about this picture – doesn’t it erroenously convey the impression that Arent lawyers are stunt pilots?

As for Paul Weiss, it recently issued a press release proclaiming that it is one of the top twenty best corporate law firms, based on a survey of corporate directors and general counsel.  Were some of those directors or counsel former clients?  And how is a rating from a magazine all that different from a prohibited client testimonial (except that a large firm is more likely to have the former rather than the latter).

I guess I shouldn’t fool myself.  The proposed rules as drafted are bad enough.  But let’s not kid ourselves as to who’s going to be the subject of enforcement:  it’s not going to be Arent, Fox or Paul Weiss.  But readers, it certainly could be you, if you solicit business in New York – and as a card carrying member of the New York Bar, it could be me (because there’s no way that I’ll put a disclaimer on my website).

Unfortunately, most of my solo colleagues are far more risk averse (not to mention far less foolish) than I am.  (Of course, running a popular weblog tends to insulate you from many stupid bar tricks).  Many of my solo colleagues may be deterred from running a weblog that provides substantive information on law or describing their practices in full detail for fear that they may run afoul of the bar restrictions.  And that’s a huge loss, in part for these lawyers, but more so for the public that benefits tremendously from the wealth of information on legal matters that’s offered by weblogs.

Update: For an excellent criticism of the “30 day rule” (which prohibits plaintiffs attorneys from contacting victims for 30 days after the incident, see these comments by Monroe Freedman at the Legal Ethics Forum.

  • http://www.HowToMakeItRain.com RJON@HowToMakeItRain.com

    With respect…I think post this is an OVERREACTION to the new advertising rules in NY. Let’s skip the suggested motives of those on the rules committee & look at the new rules objectively. What are the “biggies” you can’t do?
    1. You can’t create a false expectation of future results;
    2. You can’t re-enact a scene or show a courthouse or a courtroom setting;
    3. You can’t use pop-up ads or e-mails that border on spam; and
    4 You can’t have client testimonials.
    BIG DEAL! Seriously, if an attorney’s practice is so dependent on creating false expectations & showing cheesy courtroom settings to impress prospective new clients s/he has bigger problems to worry about than the new bar rules.
    I do have issues with the way the prohibitions are written against client testimonials, but understand the logic that left unchecked, they may tend to create expectations of future results. And the meta tag prohibitions are problematic.
    Bottom line…There are a TON of ethical, professional & HIGHLY PROFITABLE ways to Make It Rain for a small law firm that are in compliance with new Bar Rules for New York.

  • http://www.HowToMakeItRain.com RJON@HowToMakeItRain.com

    With respect…I think post this is an OVERREACTION to the new advertising rules in NY. Let’s skip the suggested motives of those on the rules committee & look at the new rules objectively. What are the “biggies” you can’t do?
    1. You can’t create a false expectation of future results;
    2. You can’t re-enact a scene or show a courthouse or a courtroom setting;
    3. You can’t use pop-up ads or e-mails that border on spam; and
    4 You can’t have client testimonials.
    BIG DEAL! Seriously, if an attorney’s practice is so dependent on creating false expectations & showing cheesy courtroom settings to impress prospective new clients s/he has bigger problems to worry about than the new bar rules.
    I do have issues with the way the prohibitions are written against client testimonials, but understand the logic that left unchecked, they may tend to create expectations of future results. And the meta tag prohibitions are problematic.
    Bottom line…There are a TON of ethical, professional & HIGHLY PROFITABLE ways to Make It Rain for a small law firm that are in compliance with new Bar Rules for New York.

  • http://67.225.230.212/~sh1ngl3 Carolyn Elefant

    First of all, one of the major problems with the rule is keeping written copies of websites. Are lawyers supposed to print out weblogs? Second, the testimonial issue is a huge problem in my book. Most solo practitioners get their best references from former clients. They’re not going to be entering their firms in AmLaw 100 beauty contests, yet there’s little distinction in my mind between the testimonial and these other surveys. The rules are troubling in that they permit one form of endorsement but not another.
    Also, it is troubling that the NY Bar considers weblogs to be solicitations. That subjects them to regulation under advertising rules. Lawyers should not have to lard their weblogs up with disclaimers or be banned from describing their experiences which may amount to a “characterization of services.” We are going down a slippery slope when we put weblogs and websites in the same category as print advertisements.
    My other concern with increased regulation is that it leads to increased enforcement. Be real – who do you think these regulations will be enforced against? They will have a chilling effect on solos who are considering weblogs.
    Most practicing lawyers who’ve commented on these rules are troubled by them. I am disturbed that lawyer consultants are not and instead, see the rules as another opportunity to get lawyers to pay for services to ensure compliance.

  • http://67.225.230.212/~sh1ngl3 Carolyn Elefant

    First of all, one of the major problems with the rule is keeping written copies of websites. Are lawyers supposed to print out weblogs? Second, the testimonial issue is a huge problem in my book. Most solo practitioners get their best references from former clients. They’re not going to be entering their firms in AmLaw 100 beauty contests, yet there’s little distinction in my mind between the testimonial and these other surveys. The rules are troubling in that they permit one form of endorsement but not another.
    Also, it is troubling that the NY Bar considers weblogs to be solicitations. That subjects them to regulation under advertising rules. Lawyers should not have to lard their weblogs up with disclaimers or be banned from describing their experiences which may amount to a “characterization of services.” We are going down a slippery slope when we put weblogs and websites in the same category as print advertisements.
    My other concern with increased regulation is that it leads to increased enforcement. Be real – who do you think these regulations will be enforced against? They will have a chilling effect on solos who are considering weblogs.
    Most practicing lawyers who’ve commented on these rules are troubled by them. I am disturbed that lawyer consultants are not and instead, see the rules as another opportunity to get lawyers to pay for services to ensure compliance.

  • Susan Cartier-Liebel

    I just want to offer reference to a valuable website for those concerned about the cumbersome responsiblity of maintaining records of their website in order to comply with new rules regarding “advertising.” It is called http://www.archive.org. This particular website keeps records of ALL versions of your website absolutely free (whether you want them to or not!)and accessible to anyone who wants to review it. Their mission is for historical and cultural purposes but it serves a very worthwhile purpose, especially for the solo. Therefore, anyone on a reviewing committee can access it very easily. I suppose I wasn’t really surprised at a recent Bar Association discussion that the proponents of modifying the rules concerning “advertising” were totally ignorant of this website and how it makes the responsiblity of maintaining records for purposes of compliance so much easier. Check it out.

  • Susan Cartier-Liebel

    I just want to offer reference to a valuable website for those concerned about the cumbersome responsiblity of maintaining records of their website in order to comply with new rules regarding “advertising.” It is called http://www.archive.org. This particular website keeps records of ALL versions of your website absolutely free (whether you want them to or not!)and accessible to anyone who wants to review it. Their mission is for historical and cultural purposes but it serves a very worthwhile purpose, especially for the solo. Therefore, anyone on a reviewing committee can access it very easily. I suppose I wasn’t really surprised at a recent Bar Association discussion that the proponents of modifying the rules concerning “advertising” were totally ignorant of this website and how it makes the responsiblity of maintaining records for purposes of compliance so much easier. Check it out.

  • http://lemberglaw.com Sergei Lemberg

    Carolyn,
    You’re right on the money again, and so is Ed Poll. Having worked at big firms, I had the witness to witness first hand how much unethical bill padding actually goes on, how much irrelevant and unused research is done, how document review is abused and turned into a cash cow business. Why isn’t the NY Bar concerned with these practices?
    And what about hourly fees in the $700-800 range for partners…is it really ethical to charge such exorbitant fees??

  • http://lemberglaw.com Sergei Lemberg

    Carolyn,
    You’re right on the money again, and so is Ed Poll. Having worked at big firms, I had the witness to witness first hand how much unethical bill padding actually goes on, how much irrelevant and unused research is done, how document review is abused and turned into a cash cow business. Why isn’t the NY Bar concerned with these practices?
    And what about hourly fees in the $700-800 range for partners…is it really ethical to charge such exorbitant fees??

  • http://www.Lawyer-Advertising-Blog.com Philip Franckel

    The new rules proposed in New York are a joke because the existing rules are not enforced. A quick glance at TV advertising in New York or any of the web sites belonging to large law firms quickly reveals many ethical violations. Some violations are minor, however I have seen several major violations go on for a long period of time.
    Most of the new rules are seeking to regulate issues that are not as important as the issues that are already regulated and not enforced. The rules are becoming like the tax code. It would be far better to substantially reduce the number of rules and strictly enforce them. As the number of rules increase, the propensity for selective enforcement will increase.
    Now that I have voiced my opposition to new rules, I would like to say that I am favor of many new rules. I have conflicting interests, because I am against advertising regulations on principle, but I feel regulations are beneficial to me because they help to eliminate the competition. I believe that I am simply better at designing advertising that works, while complying with any rule. When I made my TV commercials, I anticipated the eventuality of these rules and produced my TV commercials so as to not violate any of them.
    Additionally, some of these rules are poorly written, far overreaching and I believe unconstitutional. For instance, one of the new rules requires that I reveal the TV and radio stations my commercials will run on; the frequency; and the period of time in which they will run. Why should this rule apply only to TV and radio? Why not Yellow Pages, magazines and web sites? More importantly, this is information which does not have anything to do with the content of the advertising. It is confidential information which I will not reveal, nor will anyone else. Previous court decisions have favored regulation of the content of advertising. In fact, when a lawyer placed an advertisement on a condom wrapper and another lawyer advertised in a porn magazine, the Supreme Court stated that a state can regulate the content of an advertisement, but not where the advertisement appears. Obviously, this is one rule that no one will comply with and I seriously doubt that an attempt to enforce it will ever come about. If it does, it is destined to be struck down.

  • http://www.Lawyer-Advertising-Blog.com Philip Franckel

    The new rules proposed in New York are a joke because the existing rules are not enforced. A quick glance at TV advertising in New York or any of the web sites belonging to large law firms quickly reveals many ethical violations. Some violations are minor, however I have seen several major violations go on for a long period of time.
    Most of the new rules are seeking to regulate issues that are not as important as the issues that are already regulated and not enforced. The rules are becoming like the tax code. It would be far better to substantially reduce the number of rules and strictly enforce them. As the number of rules increase, the propensity for selective enforcement will increase.
    Now that I have voiced my opposition to new rules, I would like to say that I am favor of many new rules. I have conflicting interests, because I am against advertising regulations on principle, but I feel regulations are beneficial to me because they help to eliminate the competition. I believe that I am simply better at designing advertising that works, while complying with any rule. When I made my TV commercials, I anticipated the eventuality of these rules and produced my TV commercials so as to not violate any of them.
    Additionally, some of these rules are poorly written, far overreaching and I believe unconstitutional. For instance, one of the new rules requires that I reveal the TV and radio stations my commercials will run on; the frequency; and the period of time in which they will run. Why should this rule apply only to TV and radio? Why not Yellow Pages, magazines and web sites? More importantly, this is information which does not have anything to do with the content of the advertising. It is confidential information which I will not reveal, nor will anyone else. Previous court decisions have favored regulation of the content of advertising. In fact, when a lawyer placed an advertisement on a condom wrapper and another lawyer advertised in a porn magazine, the Supreme Court stated that a state can regulate the content of an advertisement, but not where the advertisement appears. Obviously, this is one rule that no one will comply with and I seriously doubt that an attempt to enforce it will ever come about. If it does, it is destined to be struck down.

  • http://nylawblog.typepad.com/suigeneris/2006/06/more_on_nys_pro.html Sui Generis–a New York law bl

    More On NY’s Proposed Rules Limiting Lawyer Advertising

    I recently posted about the newly proposed disciplinary rules agreed upon by the four New York Appellate Division presiding justices that would enact comprehensive reforms intended to severely limit lawyer advertising. This proposed change has lit up t…

  • http://nylawblog.typepad.com/suigeneris/2006/06/more_on_nys_pro.html Sui Generis–a New York law blog

    More On NY’s Proposed Rules Limiting Lawyer Advertising

    I recently posted about the newly proposed disciplinary rules agreed upon by the four New York Appellate Division presiding justices that would enact comprehensive reforms intended to severely limit lawyer advertising. This proposed change has lit up t…

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  • el guapo

    The 30 day rule is the most troubling. I have an attorney buddy who used to work for an insurance company. His job was to approach accident victims in the hospital and try to get them to settle cases fast and cheap.
    If you are going to have a 30-day rule, it should also be the rule that NOBODY can approach victims for 30 days and that any settlement signed in the first 45 days can be voided at the option of the plaintiff. Further, the state bar should send a letter to each victim advising them of their right to retain counsel.

  • el guapo

    The 30 day rule is the most troubling. I have an attorney buddy who used to work for an insurance company. His job was to approach accident victims in the hospital and try to get them to settle cases fast and cheap.
    If you are going to have a 30-day rule, it should also be the rule that NOBODY can approach victims for 30 days and that any settlement signed in the first 45 days can be voided at the option of the plaintiff. Further, the state bar should send a letter to each victim advising them of their right to retain counsel.

  • http://riversidepr.typepad.com/ Rich Klein, Riverside Public R

    The Office of Court Administration and the New York State Bar Association should use MORE advertising and media relations to do a better job educating the public about client rights and professional ethics, attorney disciplinary procedures, and the confusing state court system. That will do much more for the integrity of the profession then some of the new rules, which will only make it harder for the consumer to make an educated decision when hiring a lawyer or firm.

  • http://riversidepr.typepad.com/ Rich Klein, Riverside Public Relations

    The Office of Court Administration and the New York State Bar Association should use MORE advertising and media relations to do a better job educating the public about client rights and professional ethics, attorney disciplinary procedures, and the confusing state court system. That will do much more for the integrity of the profession then some of the new rules, which will only make it harder for the consumer to make an educated decision when hiring a lawyer or firm.

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