BigLaw In Violation of NY’s New Advertising Rules
Both Eric Turkewitz of New York Personal Injury Law Blog and Nicole Black of Sui Generis have posted here and here on a number of large New York law firms that failed to comply with New York’s new advertising ethics rules by labeling their websites as “attorney advertising.”
In this situation, I can’t say that I disagree with the law firms, or with any other firm that hasn’t posted a Scarlet A (as in advertising). (For the record, I’m a member in good standing of the New York bar and my website, Law Offices of Carolyn Elefant or my firm’s blog, Renewables Offshore, and I haven’t posted these labels on my sites). Quite frankly, I do not regard websites or blogs as advertising under the New York rules, which define advertisement as:
(A)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 or law firm. It does not
include communications to existing clients or other lawyers.
Now, one purpose of my website and blog is to retain clients. But they serve a host of other non-advertising purposes as well – they are a public resource to educate others on legal issues, a way to communicate with and allow existing clients and other lawyers to learn more about me and a way to establish my credibility before the courts and federal agencies where I practice. Large firms use their websites for multiple purposes too; just yesterday, at Legal Blogwatch, I posted about how law firms are posting videos on their websites for recruitment. A newspaper advertisement that says “Hire me to represent you” is one dimensional, its primary purpose (indeed its only purpose) is to attract prospective clients. Websites and blogs, just like personal appearances, handing out business cards, writing scholarly articles or appearing on Court TV, serve many functions.
Why am I so opposed to simply labeling my website as an ad? Because frankly, I believe that it cheapens my message. I invest significant resources in creating information at my website and I do so partly for marketing, but partly because I believe in the importance of educating potential clients, whether they hire me or not (and of course, I don’t want to have to retain copies of every iteration of my site).
Fortunately, Public Citizen and attorney James Alexander are challenging the constitutionality of the rules. MyShingle stands behind them; other NY lawyers should too.
Right on, Carolyn…
and how about those sites that have hundreds of pages up? Is the “primary purpose” determined by lookint at one page or at all of them.
Many websites have tons of useful info for consumers and while those pages may have a secondary purpose of getting clients, a lot of the “commerical speech” cases say that it’s not enough (to justify regulation) for the state (read that “the bar”) to say that the information website might also attract clients.
I’m surprise the New York lawyers put up with so much of their bar dues being spent on this wasteful exercise in “regulation.”
I couldn’t agree more. As a consultant to law firms, much of the information on the site that I recommend lawyers post is informational. A newsletter posted on a website filled with useful tips, for example, is not an advertisement. Neither is a biography of a partner. The OCA’s rules should be revised to reflect these and other 21st century realities.