Lawyers are already governed by an overwhelming array of regulations and restrictions. By way of example, we've already got rules which dictate:
how we should behave [see, e.g., DR1-102(A)(2) (lawyer may not engage in "conduct that adversely reflects on the lawyer's...fitness as a lawyer"); DR7-106(C)(6) (lawyers may not engage "in undignified or discourteous conduct which is degrading to a tribunal")];The last thing we need are restrictions that are fundamentally violative of our constitutional entitlement to freedom of speech and expression.
what we must do when we are being hired or "retained" by a client [see, e.g., 22 NYCRR section 603.7 (written agreements required for contingency fee, personal-injury cases); 22 NYCRR section 1400 et seq. (written retainer required for domestic-relations matters); 22 NYCRR 1215 (written retainer required when services are expected to exceed $3,000 or more)]; and
how we collect our fees in the event of a dispute [see, e.g., 22 NYCRR Part 137 (fee arbitration and notice requirements)].
If regulators have their way, the website you are currently viewing, and others like it, may violate newly proposed standards of conduct that are slated to become effective on or about November 1, 2006. The proposed changes, which have been released for public comment until September 15, 2006, seek to overhaul the manner in which attorneys communicate with their clients and members of the general public.
Under these new rules, an "advertisement" will be defined as "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." If we take this definition to its logical extreme, any time I am invited to speak at a public event, I may be engaged in "advertising." And, if that's the case, I may be required to begin or end my remarks with certain "disclaimers," like:
"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."Unfortunately, the absurdity does not end there. Should I be so bold as to send you an e-mail that could be construed as an "advertisement" or a "solicitation," (as those terms are currently defined by regulators), I will be required to include in the subject line of my communication the words, "ATTORNEY ADVERTISING."
These and other restrictions now under consideration are so intrusive and overly broad, that a number of respected advocates have openly expressed their criticisms and concerns. For some incisive comments authored by noted real-estate attorney, Joshua Stein (in his personal capacity and not on behalf of his firm or other organization), we commend you to his website ( www.real-estate-law.com ) where he has posted his paper entitled, "Tangling Up the Web for Lawyers."
In that document, Mr. Stein aptly notes, in part, as follows:
I can understand having warning labels for poisons, airbags, flammable clothing, dangerous intersections, or hazardous waste. But I cannot see why attorney advertising falls in a similar category. Are even the worst members of our profession that evil or dangerous? Really? (And if they are, don't we already have ways to deal with them, without imposing a Warning Requirement on millions of routine email communications in the practice of law?)
As its main practical effect, any Warning Requirement will simply increase the likelihood that people who receive communications from lawyers will discard or delete them without reading them. The phrase "Attorney Advertising" is much like saying: "Please Delete Me as Soon as Possible." Why should lawyers bear that burden when they try to communicate?
By encouraging recipients to delete without reading any e-mail messages they receive from lawyers, the Warning Requirement interferes with educating the public about the law....
We wholeheartedly agree with Mr. Stein and encourage you to join us in objecting to these new rule changes. Address your comments (prior to September 15, 2006) to:
Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004
For a copy of the proposed amendments, please click on the following link:
http://www.nycourts.gov/rules/proposedamendments.shtml
For a copy of "Tangling Up the Web for Lawyers," by Joshua Stein, Esq., please click on the following link:
"Tangling Up the Web for Lawyers" or you can visit Mr. Stein's website at: www.real-estate-law.com (search for the link that reads, "This Website May Become Unethical on November 1.")
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NOTE: After this piece was originally posted, the deadlines delineated herein were extended by OCA. To view this updated information, please click the first link provided above.