Should NY Ban Targeted Mailings?

After last year’s Staten Island Ferry crash, lawyer ads targeting potential clients proliferated in the local news media within hours.  Though banning newspaper ads would likely violate the First Amendment, New York is now considering a more narrow ban on targeted solicitations mailed to potential plaintiffs within thirty days of an incident as reported in Practicing Ethics:  Targeted Mail and the 30 Day Rule, New York Lawyer (11/19/04).  Florida has such a rule which was upheld in the US Supreme Court decision Florida Bar v. Went For It, 515 U.S. 618 (1995).

Prior to issuing its 30 day black out on targeted solicitations, the Florida Bar had conducted two years worth of studies showing that the public found such advertising offensive not to mention a violation of privacy.  Of course, on the other side, opponents of such regulation argue that the black out periods don’t apply to insurance companies, thus allowing them access to victims while denying the same to lawyers who might offer advice to victims on their legal rights.  Moreover, sometimes solicitations provide information to those who might not otherwise have access to it from any other sources.

From our own perspective, if it’s true that the public finds solicitation offensive, it would seem to us that such advertising would simply prove too ineffective to be worth pursuing.  Thus, market forces rather than regulation would lead to its demise.  But the possibility of a 30 day ban highlights another matter:  the importance of diversifying one’s advertising efforts, allocating money not just to targeted letters and Yellow Pages ads, but also to Internet, conferences and personal networking.  As lawyers, we practice at the mercy of regulators and there’s always a risk that the bar will crack down on one form of adversing or another.  At least with a diverse approach, you’ll always be covered.

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