Michael Miller, a noted Trusts and Estates lawyer, and past President of New York County Lawyers' Association, has lent his voice to the growing chorus of concerned advocates who have expressed dissatisfaction with the proposed regulations relating to attorney advertising and solicitations.
In particular, Mr. Miller has questioned the propriety of the proposed "30 day blackout period" found at section 1200.41-a [DR 7-111], which would apply to the families of wrongful death victims.
In its current form, the regulation reads as follows:
In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, representing or seeking to represent a party to any pending or potential litigation or proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.In a letter to Michael Colodner, Counsel to the Office of Court Administration--dated yesterday, November 15, 2006--Mr. Miller noted as follows:
I respectfully submit that this proposed rule as written would be counter-productive to the timely probate and administration of estates of persons who died in serious accidents and would result in certain attorneys being exposed to unwarranted exposure to disciplinary proceedings. While I would hope that disciplinary committees would find that there was no unethical conduct for promptly informing a wrongful death victim's family of the existence of a will or trust, should the committees' resources be required in such matters? I submit that the provision should be revised and clarified.He further proposed a carve-out which reads as follows:
This provision shall not apply to communications pertaining to the existence of testamentary instruments, trust agreements or other testamentary substitutes executed by the decedent.If these regulations must exist (and ultimately survive constitutional muster), then Mr. Miller's suggested modification strikes us as completely appropriate under the circumstances.
To download a copy of Mr. Miller's letter, please click on the following link:
Miller Letter
For a copy of the proposed amendments and latest deadline information, please click on the following link:
Advertising & Solicitation Amendments
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To view our prior blog posts on this topic, see How Unethical Is This? and FTC Objects to Attorney-Advertising Rule (Go Figure!)