Yesterday I received an email from a reader asking some questions about the proposed changes to the rules governing lawyer advertising, which has been a topic of discussion not only here, but all around the blogosphere and the internet. If you haven't taken a look at the proposed changes to the New York rules, I encourage you to do so.
Since these are only proposed rules at this point, nobody can really say what the bar or the courts will do with these new rules, if indeed they are enacted as proposed. And the opinions expressed in this blog are just that - opinions (about which I always invite comment and discussion). That being said, I thought I'd paraphrase the questions as posed to me today, along with some of my thoughts in response.
1.How do the new rules affect lawyer cooperative advertising, where different lawyers and law firms pool their money together in one campaign and use a spokesperson?
2. Under the new rules, how can a lawyer advertise on television or radio to effectively reach non-English speaking communities without using a spokesperson that speaks the particular community's native language?
These questions seemed to be primarily aimed at the rule (Section 1200.6/DR 2-101) which restricts the use of "the voice or image of a non-attorney spokesperson that is recognizable to the public other than the voice or image of a former client as permitted under ... this section." Read in conjunction with the rest of the rules, it would appear that the use of a spokesperson is permitted as long as the spokesperson is not 'recognizable' to the public, and is not used to portray a lawyer, judge or client. The use of a spokesperson that speaks Spanish, for example, would seem to be permissible under the proposed rules, as long as no other provisions of the rules are violated.
The first question raises some interesting issues, however, regarding the use of 'cooperative' or 'pooled' advertising. Separate and apart from the issue of using a spokesperson, other amendments to the rules may effectively eliminate the ability to use cooperative advertising - at least in the way I have seen it used. The proposed amendments prohibit "the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case." Many cooperative advertising groups use the name of the cooperative, rather than the names of the individual firms in the advertising, which would appear to violate the proposed rule.
The proposed rules require that all advertisements contain "the name, office address and telephone number of the lawyer or law firm whose services are being offered." Therefore, even in a 'cooperative' or 'pooled' advertisement, each firm's individual information would need to be supplied.
The examples of cooperative advertising that I've seen don't indicate (or if they do, they don't prominently indicate) the identities of the lawyers or law firms that are participating in the cooperative, nor do they provide information about how referrals will be made. Most of the time, these ads involve the use of a spokesperson dressed as a lawyer, in a setting that would appear to be a law office, which would seem to violate the "non-lawyer portraying a lawyer" prohibition of the rules. That doesn't mean it isn't being done or can't be done, but I haven't seen it.
Although we don't know how the proposed amendments will be implemented or interpreted, it is notable that other states have similar provisions to those contained in the proposed rules. Take Pennsylvania, for example. Pennsylvania Code Rule 7.2, Advertising, contains many provisions similar (or identical) to the proposed New York amendments. Perhaps a review of ethics opinions in other jurisdictions with similar rules would be at least somewhat enlightening.
For example, the Pennsylvania rules specifically address cooperative advertisements and require that any such advertisements specifically provide "the name and principal office address of each lawyer or law firm involved in paying for the advertisement and, if any lawyer or law firm will receive referrals from the advertisement, the circumstances under which referrals will be made and the basis and criteria on which the referral system operates." (See Rule 7.2(j)).
Comments to the Pennsylvania rule also note that, "In the case of cooperative arrangements, the required disclosures must include the basis or criteria on which lawyers or law firms participating in the cooperative will be referred cases, e.g., chronological order of calls, geographic location, etc. " The Texas Disciplinary Rules of Professional Conduct contain similar provisions. However, cooperative advertising is not mentioned specifically in the proposed amendments to the New York rules.
Although this post focuses on cooperative advertising in light of the question I received, there are many provisions of the new rules that make significant changes in the ways lawyers in New York are advertising their services. There is a 90 day comment period for the proposed amendments, and yesterday's post contained information about how to comment on the proposed rules.
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