26 octobre, 2006 11:40
N.Y. Bar Groups Seek Changes in Advertising Restrictions
By John Caher
New York Law Journal
10-26-2006
Expressing grave concerns over the constitutionality, practicality and fair enforcement of proposed new restrictions on attorney advertising, major bar groups are urging court administrators to seek a more narrowly tailored and focused response to the perceived and actual ills of lawyer self-promotion and solicitations.
With the Nov. 15 deadline for commentary quickly approaching, and the Jan. 15 projected effective date hovering ominously, several bar groups have submitted reports to the Office of Court Administration. None flatly rejected either the proposed rules or the need for new rules. But none fully embraced the proposal either, suggesting that much more work needs to be done before the initiative is acceptable to leading bar groups as well as firms and individual practitioners.
The proposed rules, which are posted on the court system's Web site at www.nycourts.gov/rules, largely follow recommendations adopted earlier this year by the New York State Bar Association.
They cover solicitations of mass tort clients, fictionalizations and celebrity voice-overs and attempt to clamp down on deceptive and misleading ads. But they also address tasteless advertisements and would implement new controls on the way lawyers communicate with potential clients, raising free speech questions.
And while the State Bar's proposal would be geared more toward education and peer-pressure persuasion, the plan put out by the four Appellate Division presiding justices carries a strong disciplinary component.
The most recent formal response to the draft rules came late last week when the New York State Trial Lawyers Association questioned "the wisdom of an across-the-board draconian response to abuses by a few attorneys."
Yet the trial lawyers also agreed that advertising limits are necessary and called for a court system budget increase to step up enforcement of current regulations, especially against out-of-state firms that are not licensed in New York but profit by soliciting New York cases and then brokering those cases out for a fee to New York attorneys.
"The disciplinary committees should seek to identify such firms, and refer cases against them for unlicensed practice to the Attorney General's office, Joseph P. Awad, president of the trial lawyers group, said in an Oct. 20 letter to the OCA.
The bar group, which held a symposium on the issue before drafting its comments, was especially concerned with provisions that attempt "to impose standards of taste and dignity, as well as honesty and integrity, on attorney advertising." Similar concerns have been raised by a number of groups, as well as the Federal Trade Commission. And, like virtually all of the groups that have commented, the trial lawyers said it would be inappropriate to bar plaintiffs attorneys from contacting potential tort clients unless defense attorneys and insurers are similarly restrained.
"Barring communications from attorneys for thirty days subsequent to an incident potentially giving rise to personal injury or wrongful death claims exposes victims to exploitive offers by insurers and corporations without giving them the opportunity to be warned that they may be giving up important rights," Awad said in his Oct. 20 letter.
OVERLY BROAD
In general, comments prepared by individual practitioners, the New York State Trial Lawyers Association, the New York County Lawyers' Association, the New York City Bar Association, the New York State Academy of Trial Lawyers, a newly formed organization comprised of attorneys who advertise, New Yorkers for Free Speech and others reflect considerable concern over the breadth of the proposed rules.
"[T]he City Bar respectfully submits that the Proposed Rules contain content-based restrictions that would impinge on a lawyer's First Amendment right to engage in commercial speech, and would prevent consumers from obtaining truthful, non-misleading information about the availability of legal services that would be relevant to the consumers' selection of a lawyer," the city bar's Committee on Professional Responsibility said in an Oct. 12 draft report.
It also joined several other critics in questioning proposed new advertisement retention and filing requirements that would "create a tremendous burden on lawyers without any evidence that they would further the overall objectives of those rules." Generally, the city bar's draft report deems the proposed new rules "unworkable."
NYCLA portrays the proposed restrictions as a well-intentioned but grossly overbroad remedy. It essentially suggested the presiding justices go back to the drawing board and come up with something "more narrowly tailored so that legitimate speech of value to consumers of legal services will not be unnecessarily stifled and so that the system of enforcement will not be burdened with onerous and expensive requirements that will ultimately detract from protection of those most vulnerable."
Latham & Watkins real estate partner Joshua Stein complains that the proposed new rules "show virtually no understanding at all about the practicalities" of e-mail and Web sites. In what he terms an "opus" on his personal Web site, Stein said the restrictions would unnecessarily force him to gut his Internet presence (see www.real-estate-law.com/index_static.php, "This Web site May Become Unethical on January 15").
Stein has maintained a Web presence since 1997. On his site, he offers dozens of his articles and information on his books in a format that is not overtly an ad.
"If the Website Rules take effect as written, my website and most other lawyers' and law firms' websites will at least require significant reprogramming (at significant expense) to comply," Stein said in his Web-posted article, "Tangling up the Web for Lawyers," making clear that the views expressed are his and not those necessary of Latham & Watkins. "But nothing on my website, or on most of the other suddenly noncompliant websites, will pose any threat to any client, potential client, or the public, or otherwise create any true ethical issue."
NYCLA President E. David Robertson of Caldwalader, Wickersham & Taft in Manhattan, said in an interview that the driving force for the new regulations seems to be some perceived excesses, primarily upstate, where television and radio time is far more affordable and a more realistic option for aggressive solo and small firm practitioners. He notes that the catalyst for the current debate was largely then-New York State Bar Association President A. Vincent Buzard of Rochester, whose initiative led to a report and recommendations adopted in January.
But Robertson cautions against a knee-jerk reaction by the bar to what some attorneys view as a knee-jerk reaction by the presiding justices. While his organization has several concerns about the proposed rules, Robertson believes a workable compromise can be achieved that addresses the various complaints, practical as well as constitutional, that have been raised.
"I would just hope there would be some sort of a phase-in period for people to get their materials in compliance," Robertson said.
CHALLENGE IN COURT
If the presiding justices stick to their current plan, however, the rules will take effect in mid-January. Observers agree that if the rules are imposed as now written, there will almost certainly be an immediate legal challenge.
New Yorkers for Free Speech, for instance, made clear that it does not wish to relitigate Bates v. State Bar, the 1977 U.S. Supreme Court decision upholding the right of attorneys to advertise. But it left no doubt that it is prepared to do so "if the current proposals are ultimately embodied in New York's disciplinary rules," the group's attorney, First Amendment expert Floyd Abrams of Cahill Gordon & Reindel wrote in a late September letter to OCA.
Edward P. Ryan, who largely pioneered attorney advertising in the Albany area, views the proposed regulations as a "wide open invitation to litigate."
Ryan opened a solo practice in the late 1970s and became one of the first local lawyers to advertise regularly. In the mid 1980s, he was one of the first to advertise on television, and has continued to do so for two decades. But he said the proposed rules would force him to drastically change his approach, even though he takes pains to ensure his ads are honest and tasteful, and even though they have never generated a complaint. Ryan views the proposed rules as the reaction of critics who have never accepted the fact that the U.S. Supreme Court said attorneys have a right to advertise.
"I have been on TV almost continuously for 20 years, and I have not had a single complaint," Ryan said. "In fact, local members of the judiciary have complimented me on the ads. I rely on testimonials to a large extent. If the new regulations are enacted, it would essentially bar me from running testimonials for the simple reason that the mandatory disclaimer language that I would have to add would be as long or longer than my commercial."
Stein said the recent focus on attorney advertising is understandable, but perhaps overly focused on turning the calendar back to more genteel days than in conforming rules with modern practices.
"It makes me sad to see what I've always considered a proud profession advertise like a supermarket," Stein said. "But maybe that's just the way it is today. I think a lot of the stuff attorneys are doing is kind of tacky and unfortunate. I'm just not sure the government has any business regulating it."
