Law & Society Blog

The New York court system is currently revising its rules for lawyer advertising. Here are some of the proposed changes:

• Expansion of rules to cover computer and Internet-based advertising and solicitation, including restrictions on websites and e-mail, and bans on “pop-up” ads and chat-room solicitation.
• Ban on using nicknames, mottos or trade names that suggest an ability to obtain results.
• Ban on depicting the use of a courtroom or courthouse.
• Requirements to file all advertisements for legal services, including radio and television ads, with the attorney disciplinary committees for review, and to translate all foreign-language ads into English before filing.

These proposals are ill considered. What’s wrong with using pop up windows? Anytime I click on a link on the Supreme Court’s website to view a slip opinion, a new window opens (i.e., “pops up”), which, if done by a New York lawyer, would violate the proposed rules. In his draft letter to the Office of Court Administration, Joshua Stein observes:

As a particularly ironic example, the New York Unified Court System … uses pop-up window technology to display the Rules themselves. If any web user tries to view the Rules with their pop-up blocker on, they won’t be able to, because the Rules appear in a new browser screen. Therefore, when I wanted to view the Rules on the Court System’s website, I had to tell my pop-up blocker that this particular pop-up window was okay.

Of course, I understand that this is not what the rules intend to prevent. However, that’s what the rules say. And so, if enacted, the burden would be on me to explain that the rules can’t possibly mean what they say. But why restrict lawyer web design at all? As long as the information is truthful, why shouldn’t New York lawyers have the right to annoy prospective clients with pop ups? And what in the world is wrong with using a courthouse as a backdrop? The courthouse is a symbol of justice just as much as a gavel or the half-naked, blindfolded Justitia with her scales. In other words: Gavel = GOOD. Blindfolded, half-naked goddess with scales = GOOD. Courthouse = BAD. Please!

The most glaring problem of the proposed rules, however, is the definition of advertising, which brings online communication under the rules and triggers, among other things, the onerous recordkeeping and filing requirements. Here is the definition:

Section 1200.1(k) “Advertisement” means any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer’s or law firm’s services.”

Let’s see. Suppose I wrote on a blog that “Dershowitz clearly won/lost/tied his last debate with Chomsky.” That’s a public communication (= blog), by a lawyer (= me), about a lawyer (= Dershowitz). Under the proposed rules, we’re looking at an “advertisement,” and I have to file it with the attorney disciplinary committee and have to keep a record of it. Obviously an absurd (and plainly unconstitutional) result. Some have pointed out, sensibly, that the proposed rule really means:

Section 1200.1(k) “Advertisement” means any public communication made by or on behalf of a lawyer or law firm about the same lawyer or law firm, or about the same lawyer’s or law firm’s services.”

That takes care of my example. But what if Dershowitz was in any way associated with my law firm? (He is not, at least not as far as I know.) In that case, the sensible “same lawyer” reading would no longer save me from the reach of the proposed rules. Another example. Suppose I claim on a blog that: “The criminal justice system is biased against minorities.” That’s public communication by a lawyer about a serious problem that “the same law firm,” through its pro bono program, happens to be involved in. Again, under the proposed rules, I’m required to file a copy with the disciplinary committee and then to retain records. Some readers of the proposed rules have argued that such statements are not sufficiently tied to the “law firm’s services.” Fair point. But what if I write: “The criminal justice system is biased against minorities, as I have witnessed on more than one occasion in my own practice.” Now that’s clearly a public communication by a lawyer about that same lawyer’s services, and thus subject to the rules.

In their current form, the rules are unacceptable. The restrictions imposed on New York lawyers’ non-commercial speech are sweeping and the chilling effects on legal bloggers are dramatic. The only way to fix the rules (if they can be fixed) is to narrowly define lawyer advertising and, in addition, to specifically exempt all speech that is not primarily aimed at soliciting new client business. At the very least, Section 1200.1(k) should be modified to include an intent criterion.

“Advertisement” means any public communication made by or on behalf of a lawyer or law firm about the same lawyer or law firm, or about the same lawyer’s or law firm’s services, aimed primarily at soliciting new client business.

Given the topic, let me restate that, as with everything on this blog, this post is the author’s personal opinion only.

NOTE: This entry has been cross-posted at the Antitrust Review.

Technorati Tags: lawyers, advertising, free speech

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