On February 1, 2007, the NYS Office of Court Administration adopted new rules regarding attorney advertising. These rules have been incorporated into the New York Rules of Professional Conduct which became effective April 1, 2009. The new rules and the comments now found in Rules of Professional Conduct more clearly define what is, and isn’t, acceptable for attorney advertising and defend the integrity of the profession by establishing clear guidelines. The Rules favor attorneys who wish to build their practice through responsible advertising.
The good news is that the new attorney advertising rules, which were revamped just over two years ago, only made minor changes affecting attorney advertising. Nevertheless, it is a good time to refresh one self on the Rules. The following summary highlights some of the Rules’ major provisions.
Sections 7.1 v. 7.3(b) Advertising v. Solicitation
The Rules first define what types of communications may be considered advertisements, and then go on to differentiate between what is an advertisement versus what is considered a solicitation. An advertisement is a communication primarily designed to attract new clients. Thus, advertisements directed at existing clients and other lawyers are exempt. Advertisements, unlike solicitations, do not trigger filing requirements. The Comments distinguish between advertisements and solicitation by stating that solicitations fulfill the following:
- Advertisement is initiated by a lawyer
- Purpose is persuading recipients to obtain the lawyer
- Motive is to make money
- Directed to or targeted at a specific recipient or group of recipients, their family members or legal representatives
Generally, solicitations differ from advertisements in that solicitations are advertisements placed and distributed using fixed lists, and are usually sent as direct mail. If the ads only apply to a finite group of victims, solicitations can also include Web, newspapers and TV.
Section 7.1(a) Advertisements Shall Not Be False, Deceptive or Misleading
Section 7.1(a) states that a lawyer shall not disseminate an advertisement that contains false, deceptive or misleading statements, or that violates any rule. Truthful statements that are misleading are also prohibited. The Comments provide examples: The statement “I have never lost a case” may be truthful, but would be misleading if the lawyer had not lost because virtually all the cases they handled were settled. Another example of a truthful, misleading statement would be, “The average jury verdict for a given year was $100,000.” This may be a true average, but is misleading if the only reason for the average is that a large number of jury verdicts were very small and one was $10,000,000.
Section 7.1(b) Advertisement Contents
Under the new rules, there are a number of details attorneys can advertise about their services. Provided that the client has given prior written consent, attorney advertisements may include the names of clients that are regularly represented. Lawyers and firms can provide legal fees for initial consultation and contingent fee rates in civil matters in their advertisements, including “no fee” and “no fee unless recovery.” The advertisements may also include non-legal services provided by an entity owned and controlled by the lawyer or firm.
Section 7.1(c) Advertisement Restrictions
Under Section 7.1(c), some key provisions have been overturned, but the new rules do not note this. The provision stating that lawyers could not use endorsements from clients regarding a matter still pending was overturned. However, it must still be disclosed if a client received compensation for an endorsement or testimonial that was used in an advertisement. Advertisements must also disclose if actors were used or if the ad is fictionalized. Though prohibiting the use of nicknames, monikers, mottos, or trade names that imply results was overturned, attorney advertisements may not resemble legal documents.
Section 7.1(d) Advertisement Contents Requiring Factual Support
Legal ads may contain statements that are reasonably likely to create expectations of results and statements describing the quality of a lawyer’s services. These statements can also be in the form of testimonials from current or former clients, or as comparisons of the lawyer’s services to other lawyers. However, the statements must be factually supported at the date of dissemination and accompanied by the disclaimer such as, “Prior results do not guarantee a similar outcome.”
The Comments explain that characteristic descriptions of the lawyer or firm that are not comparative and do not involve results are permissible – for example, “hard-working, dedicated, compassionate.” However, comparative descriptions that cannot be factually supported could be misleading – such as “best, most experienced, hardest working.” Including attorney ratings on ads is permitted, provided they contain a past results disclaimer. Any ratings must be bona fide, though – unbiased and un-discriminatory. They must be based on objective criteria or legitimate peer review and unbiased by the rating service’s economic interests, fairly considering all lawyers within the pool.
Section 7.1(f) “Attorney Advertising” Label
The Rules state that all ads, other than radio, TV, directory, newspapers, magazines or other periodicals, shall be labeled “Attorney Advertising” on the first page or home page. If the advertisement is a brochure or postcard, the label should appear right on it. If the ad is sent as an e-mail, “ATTORNEY ADVERTISING” needs to appear in the subject line.
In sum, attorney advertising labels are not necessary for obvious advertisements, such as TV, newspaper and billboard ads. Advertisements sent to current clients are also an exception to this rule, and do not require advertising labels, as well as ads to former clients if the ad is relevant to earlier representation.
Topical newsletters, client alerts or blogs intended to educate recipients about new developments in the law are not considered advertising, nor are promotional items such as mugs and t-shirts. However, newsletters, alerts, and blogs that contain information predominantly about the lawyer or firm are generally considered to be advertising. Re-distribution of a newspaper article is also advertising if the primary purpose is to obtain clients. In this instance, the advertisement must comply with the disclaimer requirements and correct misinformation.
Section 7.1(k) Attorney Approval
Under the new rules, all attorney advertisements must be pre-approved by the lawyer or firm and retained for three years, with the exception of e-mail and computer-accessed communications and advertisements, which only need be retained for one year. Web sites must be retained for one year from the time of publication, re-design, or extensive content change. This rule also requires that a copy of ads or communications be made at least once every 90 days and retained for one year.
Section 7.1(m) Advertising Fees
This section states that if any fees are advertised, the lawyer or firm will be bound by that fee for a period of time, depending on the frequency of the ad. If the ad frequency is more than once per month, then they are bound to that fee for no less than 30 days. For ads running monthly or longer, then that fee must apply until the next issue. For example, a fee advertised in a phone book ad would stand until the next phone book is distributed. If there is no succeeding issue or advertisement, then the lawyer or firm is bound to the advertised fee for a reasonable time, but no less than 90 days.
Section 7.1(p) Advertising Fees
All ads must comply with 488(3) of Judiciary Law when discussing fees. This provision provides that ads cannot state or imply that the lawyer or firm’s ability to advance or pay costs is unique or extraordinary unless it can demonstrate that its fees are objectively unique or extraordinary. This does not prevent the lawyer or firm from discussing fees or expenses, but simply prevents any implication that fees and expenses are out of the ordinary.
Section 7.1(q) New Addition – Public Education
Communications that are educational in nature and invitations to seminars are arguably exempt from the in-person solicitations rule, provided the primary purpose is educational in nature. The following provision has been added to the Rules: “A lawyer may accept employment that results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services.” The provision represents the only major change made in the Rules since they were issued in 2007.
Further details that should be noted from section 7.1 is that public relations programs are generally not considered advertising, unless the recipients or attendees are expressly encouraged to hire a lawyer. Nor are non-profit sponsorships considered advertising. Talks and writings done by lawyers for non-lawyers should caution the audience not to attempt to solve individual problems on the basis of the information contained therein.
Section 7.3(a) Solicitations
Rule 7.3(a)(1) states that a lawyer shall not engage in a solicitation through in-person, telephone, or real-time computer-accessed communication, unless the recipient is a close friend, relative, former client or existing client. Attorneys should note that the in-person solicitation ban has been extended to chat rooms and instant messaging.
Rule 7.3(a)(v) also states that a lawyer shall not engage in a solicitation where the lawyer expects, but does not disclose, that the legal services necessary to handle the matter will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or of counsel. This Section refers to solicitations only, and does not ban advertisements in the circumstances.
Section 7.3(c) Filing Requirements
Solicitations must be filed with the disciplinary committee of the jurisdiction and copies must be retained for at least three years.
Section 7.3(e) Restrictions on Soliciting Personal Injury/Wrongful Death Victims
Section 7.3(e) prohibits soliciting personal injury or wrongful death claimants for 30 days, or 15 days if there is a filing requirement within 30 days. Section 7.3(e) does apply to the defense.
If the ad makes no expressed reference to a specific incident and is disseminated, it does not violate the rule, unless directed to a specific recipient with knowledge that they are a victim, even if the ad is part of a mass mailing. In these circumstances, the in-person solicitation rules apply, even if the recipient is a close friend, relative, or former client.
Section 7.3(f) Disclosure of Learning Identify
If the lawyer or firm is soliciting to a pre-determined recipient and was prompted by a specific occurrence involving or affecting the recipient, the solicitation shall disclose how the lawyer obtained the identity of the recipient and learned of the recipient’s potential need for legal services.
Section 7.5(e) Domains and Phone Numbers
According to Section 7.5(e), a lawyer shall not practice under a trade name, a name that is misleading as to the identity of the lawyer, or lawyers. practicing under such name, or a firm name containing names other than those of one or more lawyers in the firm. The exception here is deceased or retired lawyers, whose names may still appear in the firm’s name. A firm may use the title “legal clinic,” so long as the attorney names are included.
The Rules state that a lawyer or law firm may utilize a domain name that does not contain the name of the lawyer or firm, provided that all the pages include the actual name of the firm, the firm does not engage in practice using the domain name, the domain name does not imply an ability to get results, and the domain name does not violate another rule.
A firm’s telephone number may also contain a domain name, nickname, moniker or motto that does not otherwise violate a rule. For example, 1-800-ACCIDENT, HURT-BAD, and INJURY-LAW are permissible. The Rules prohibit phone numbers like 1-800-WINNERS, WIN-BIG, or GET-CASH, since they imply an ability to get results.
However, since the prohibition on use of monikers/nicknames that imply results was overturned, it would appear that both domains and phone numbers like those listed above would now be permissible.
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