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

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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.

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