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John Caher

New York Law Journal

01-08-2007

After digesting more than 100 comments and complaints from lawyers, constitutional concerns raised by the Federal Trade Commission and the hovering threat of a First Amendment lawsuit, the presiding justices of the Appellate Division's four departments in New York have tweaked a sweeping series of new advertising restrictions to retain the overall goal of stopping the most egregious solicitations while permitting attorneys to advertise responsibly.

The rules are far less content-restrictive than a prior proposal, attempt to more clearly define exactly what they attempt to regulate and eliminate many of the restrictions that attorneys had challenged as overly broad or even unconstitutional.

Unlike a draft proposal that generated considerable criticism, the final version makes clear that the presiding justices define "advertising" as communication aimed primarily at securing business. Previously, the definition was so broad that it could have covered lawyer-to-lawyer communications and communications with existing clients. Similarly, the definition of "solicitation" has been modified and now clearly exempts attorney responses to requests for proposals or other communications initiated by a potential client.

Further, the presiding justices deleted a provision that would have required advertising to be predominantly "informational" -- a term they did not define -- and modified restrictions on the use of testimonials and actors. In the final version, client testimonials are permitted if the client does not have a pending legal matter involving the attorney. And the use of celebrities, voice-overs and depictions of fictionalized events is now permitted so long as the attorney makes a full disclosure.

The presiding justices retained the ban on monikers, nicknames and mottoes -- such as "heavy hitter" or "dream team" -- that imply an ability to obtain results. But they loosened the filing requirements.

Under the latest version, attorneys will have to retain copies of their advertisements for three years, but will be required to hold onto their e-mail and Web site solicitations for only one year. And they will not need to initiate a new retention every time there is a relatively minor modification to their Web site.

Additionally, the presiding justices reciprocally applied a ban on contacting mass tort victims so that it covers not only plaintiffs attorneys but defense and insurance attorneys as well. The previous proposal, which would have restricted personal injury lawyers but not their counterparts, was roundly criticized by the bar.

Finally, the new rules ban advertising "techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence." That provision was added partially in response to advertisements run by a Long Island, N.Y., attorney who permitted herself to be filmed in provocative poses to tout her real estate practice. Those ads generated complaints from Long Island practitioners who noted that the attorney's cleavage had nothing to do with her legal abilities, officials said.

The presiding justices came out with their initial proposal last summer. However, rather than simply imposing the new rules, as they normally do, the justices -- acting as individual leaders of their respective departments rather than as the statewide administrative board -- ordered a 90-day public comment period before the restrictions would take effect. But the presiding justices received so many comments and complaints that they extended the comment period and delayed the effective date to Jan. 15, and then to Feb. 1.

'A REAL BALANCE'

Chief Administrative Judge Jonathan Lippman said Thursday that the presiding justices took those comments and criticisms to heart and attempted to formulate a final version that is less drastic and strikes an appropriate balance to regulate attorney advertising while respecting the practical and constitutional concerns of lawyers.

"The presiding justices and the chief judge very much feel the rules as promulgated provide a real balance in terms of having a comprehensive structure to regulate lawyer advertising, but in a way that is mindful of the practical problems lawyers face in promoting their services," Lippman said. "We think these rules protect the professional image of attorneys and the professionalism of the bar while also protecting the public in terms of ensuring that the highest standards are promoted."

State Bar President Mark H. Alcott of Paul, Weiss, Rifkind, Wharton & Garrison said his preliminary view of the latest version suggests the presiding justices indeed struck the proper balance. He noted that the new definition of attorney advertising precisely mirrors that in a report issued last year by a state bar task force headed by Bernice K. Leber of Arent Fox in Manhattan.

"We are quite happy with the fact that the presiding justices moved forward, and we are especially pleased with the collaborative, consultative process that has gone on for the past several months," Alcott said. "Our concerns were listened to, carefully considered and addressed in an appropriate fashion."

The rules in some respects divided major bar groups.

While the New York State Bar Association was generally supportive of the original proposal, the New York City Bar Association and the New York County Lawyers' Association were more critical. The New York State Trial Lawyers Association complained of the "wisdom of an across-the-board draconian response to abuses by a few attorneys," and the mainly upstate New York State Academy of Trial Lawyers was looking for tough sanctions, especially against "runners" or "chasers" whose sole practice is drumming up business for practicing lawyers.

Among those raising First Amendment issues were the Federal Trade Commission, which expressed concern that the prior proposal would restrict truthful advertising and ultimately harm consumers, and a group called New Yorkers for Free Speech. That group, which was formed by attorneys active with the New York State Trial Lawyers Association in response to the presiding justices' initial plan, has retained First Amendment expert Floyd Abrams of Cahill Gordon & Reindel.

'SIGNIFICANT IMPROVEMENT'

Abrams, in a letter to the Office of Court Administration, argued that the rules went far beyond protecting the public from deceptive advertising and "betray[ed] the hostility to lawyer advertising that is at the heart of this proposal." He suggested that the group was prepared to sue if the new rules were imposed. On Thursday, Abrams said that while there are still some provisions that could prove problematic, overall the new version is a "significant improvement."

"The new version eliminates or limits many of the most troubling aspects of the earlier draft," he said. "The organization will now consider its next step."

David G. Keyko, chairman of the city bar's professional responsibility committee and a member of the 1st Department's disciplinary committee, said the final version is a vast improvement.

"Whether it was our comments or others, clearly, the judges paid a lot of attention to this," said Keyko, a partner at Pillsbury Winthrop Shaw Pittman. "The major issues have been addressed."

A. Vincent Buzard, a former state bar president who initiated that organization's most recent examination of attorney advertising, described the new rules as a "work in progress."

"Some of the abuses in lawyer advertising will now be curbed," said Buzard, of Harris Beach in Rochester. "Now it is a matter of figuring out what conduct fits and what doesn't. New York is now one of the leaders in the country. We all ought to feel real good about that."

Recent efforts to control lawyer advertising in New York began when Senate Judiciary Committee Chairman John A. DeFrancisco, a Syracuse-area Republican and trial lawyer, approached then-4th Department Presiding Justice Eugene F. Pigott Jr. with concerns that the existing regulations were often ignored with apparent impunity by some attorneys.

DeFrancisco and Pigott, now of the Court of Appeals, agreed that the existing rules were not being enforced. Pigott then brought the issue to the other three presiding justices, who unanimously agreed that changes were necessary.

Since the rules were adopted by the four presiding justices both collectively and individually, they are consistent and enforceable in each of the four departments.