The New York State Bar Association House of Delegates adopted a resolution last week calling for clarification of what constitutes attorney advertising, and seeking statewide oversight, review and disciplinary actions for those violating the state's rules with regard to advertising. Later this week, the Administrative Board of the Courts is scheduled to consider adopting new rules related to lawyer advertising, which may impose stricter limitations and disciplinary actions.
The current New York rules may be unfamiliar to some, and some of the provisions are worth noting here. For example, all 'broadcast' advertisements are to be reviewed by the attorney before broadcast, and a tape of the advertisement must be kept for at least one year.
Lawyers are not permitted to compensate or give anything of value to the media in anticipation of or in return for professional publicity. Thus, lawyers must be careful when thanking journalists or media outlets for providing them with coverage. Sending anything that could be considered 'of value' as a thank you could be considered a breach of the disciplinary rules.
All advertisements that are mailed, or distributed other than by radio, television, directory, newspaper, magazine or other periodical is to be filed at the time of its initial distribution with the Departmental Disciplinary Committee of the appropriate judicial department. A list of the names and addresses of all those to whom the advertisement was directed must be maintained by the lawyer for at least a year. There is an exception to this rule for professional announcements such as the change of an attorney's address or status, and change of the firm name.
The rules also contain specific provisions with respect to the advertisement of fees.
It is still unclear, at least to me, where web-based advertisements fall in all of this, and how e-mail marketing is affected. But at the very least, attorneys should review the disciplinary rules and maintain copies of their advertising materials for the required preiod. It is possible that the new rules will lengthen the period of time an attorney is required to maintain these materials, and that stricter oversight will be employed.
For a full review of the current New York State rules related to lawyer advertising, see the New York Code of Professional Responsibility, beginning with DR 2-101.
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