Tuesday, June 20, 2006

Proposed rules on attorney advertising

You may have read about a set of proposed rules that would affect attorney advertising. I went through them quickly tonight and drafted a letter comment that I'm sending in to the appropriate person. My letter is below ([bracketed material] is not in the letter, but is for readers to understand what the proposed rule is). I would appreciate any comments and I will submit a supplemental letter if I see anything good. I would also encourage others to submit their comments. --Warren

The proposed rules are at: http://www.nycourts.gov/rules/proposedamendments.shtml

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June 20, 2006

Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004


Re: Proposed advertising rules


Dear Mr. Colodner:


I write to comment on the proposed advertising rules. My comments are below:

Rule 1200.6
(d)(5): While I have never used a courthouse or courtroom in any advertising, this proposed rule seems silly. For those of us who work in courthouses and courtrooms, such a scene could be a useful way of communicating what we do to prospective clients. The proposed rule improperly limits our free speech. [rule prohibits use of courthouse/courtroom in ads]

(e)(4): The proposed rule refers to “the quality” of services. My firm website indicates that I speak Spanish, Japanese and some French, and that a person answers our phone. These are “qualities” of our firm, and I assume they are acceptable things to say (I do speak those languages, and a person does answer our phone 24/7/365). I don’t think the rule distinguishes well between “quality” and “qualities”. [rule prohibits describing quality of lawyer's service - I think they mean words like "Great"]

(f)(3): The proposed disclaimer is unreasonably long and seems designed to hamper communication, rather than convey an effective disclaimer. On my site I use the following disclaimer: “Prior results do not guarantee a similar outcome.” This disclaimer is more effective. The proposed disclaimer is so long some consumers may not read the whole statement. I do not suggest you should adopt my disclaimer instead, but rather that flexibility should be allowed. [proposed disclaimer: "Prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours,
in which a lawyer or law firm may be retained."]

(g) and (h): These proposals are overly broad. It is unnecessary for most of the ads I see. I can’t think of any lawyer ads I’ve seen that were not obviously lawyer ads. Such rules might be appropriate if they were made to apply only to advertising that was not already obvious as lawyer advertising. [rules require statements on all ads of "Attorney Advertising" or "an advertisement for legal services" - does anyone not realize that Martin Harding is advertising legal services?]

I find this particularly disturbing as applied to websites. Lawyer websites serve many functions, including as a source of further information for existing clients. Proposed rule (h) is so broad (and the definition of advertising is also so broad) that every page would be required to have the “Attorney Advertising” label on it, even for pages that are not really advertising. I have pages on my website about speeding tickets in other locations that clearly indicate I don’t handle such matters. Under this rule I would still have to have the “Attorney Advertising” stamp on those pages.

As long as I mentioned it, I’ll mention that the definition of advertising is either vague or overbroad, or both. I can’t tell if it applies to my blogs. Does it apply to Matt Lerner’s New York Civil Law blog? His blog is comparable to Siegel’s updates on caselaw, but could be interpreted as advertising under the proposed rules. I don’t consider any of my blogs to be advertising (especially not my restaurant review blog). But how do I know that will hold up since the blogs link to my law firm website?

(j) It’s unclear whether this rule applies to websites and other “computer-accessed communications”. Other subsections (e.g. (h)), state “including computer …”. Does the absence of this statement mean the rule does not apply to websites, etc? [requires name, address, and phone number]

(k) Now this rule indicates that (j) does apply to websites etc. The rule indicates that the website (etc) must disclose all jurisdictions where the lawyer(s) are licensed to practice …. Is this a requirement for every page (unduly burdensome) or just somewhere on the site (more reasonable, but a devious lawyer (if they exist) could hide such information on a page people are not likely to navigate to. In general the rules do not seem to contemplate navigation issues for websites.

Please forgive my techno-arrogance, but I don’t think the authors of these proposed rules understand the web well enough to regulate it. If I publish an article on ezinearticles.com, does that count as advertising and computer-accessed communication? How about if I put a comment on a blog post?

Another problem with (h), (j) and (k) is pay-per-click (PPC) advertising. Also known as “Sponsored links”, PPC ads on Google, Yahoo, and other web advertising often have an extremely limited amount of text. The ads generally link to a website that would contain the required information. But do the proposed rules could be interpreted to require all of these disclaimers and information in the PPC ad. This would be impossible given the limited amount of text allowed in such an ad.

(n) This rule is unnecessary in regard to websites and other web content. There is a site on the web known as the “wayback machine” (search google for this phrase). It retains multiple copies of all significant websites. Google also maintains multiple copies of websites in its “cache”. The rule is also unduly burdensome for websites and other web content (i.e. blogs) that are frequently updated. Given the vague/overbroad definition of advertising, lawyers creating web content will be perplexed, to say the least. [requires attorney to keep a copy of each page for a year]

(o) I can’t figure out what this rule applies to. I have no idea. Is this still intended for mailings (and presumably e-mails), or does it apply to everything? If everything, the rule is grossly overburdensome. Websites are already open to public inspection, and are effectively filed in the wayback machine and in Google’s cache. [requires that all ads be filed with the attorney disciplinary committee]

(t) Does this rule apply to criminal defense, including traffic and dwi cases? It doesn’t make sense in that context as far as I can see. The proposed disclaimer in those contexts (and probably others) would be more likely to confuse prospective clients than inform them. [requires disclosure that client will remain liable for costs, disbursements, and other expenses - sensible for personal injury cases]

1200.7(e)(2): I don’t understand this rule. How would someone use a domain name in the practice of law? I just have no idea what this means. The rule is vague, overbroad, or just plain meaningless. [(e) talks about using a domain name that does not include the lawyer's name, and (e)(2) prohibits the lawyer from "engag[ing] in the practice of law using the domain name"]

1200.8(a)(1): What does “interactive computer-accessed communication” include? Is this a reference to chats or instant messaging? Does it include e-mail? How about PPC ads? My website is interactive (if you click on a link, it takes you to a different part of my site, or can even call up your e-mail program to send me an e-mail). What about the new “click-to-call” ads that some sites are developing, where the user enters their phone number and clicks enter, which then directs a phone call be made to that number. I don’t use this type of ad, but others may. [1200.8 deals with solicitation]

1200.8(e): This rule is unduly restrictive. What if the legislature sets a new filing deadline of 31 days (or 45 days) for something? This would greatly diminish the ability of injured persons to recover for their injuries. I don’t see this rule applying to anything I do, but I don’t like how it treats potential claimants. I have the same concern about 1200.41-a. [these rules prohibit contacting people within 30 days unless there is a filing deadline of 30 days from the date of the incident]

Very truly yours,


Warren Redlich
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