Alice in Wonderland Comes to New York Law: Marketing through the New Advertising Rules

Article excerpt

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Hear ye! Hear ye! Judges of the state of New York, in their wisdom, have decreed that modern marketing activities may lead to unprofessional activities and hence must be regulated through a set of new advertising ethics regulations. The rules reflect the perennial psychological clash between the dignity of the legal profession and the nitty-gritty of targeting, getting and keeping business in a highly competitive world [see "Courts Revamp New York Ad Rules, Aim to Bring Ethics Requirements into the Electronic Age," February 2007, p. 20].

The rules are of importance to all marketers because they apply to all attorneys licensed in New York, regardless of the geographic location in which they practice, and any attorney, anywhere, looking to find, get and keep clients in New York State.

Basic Definitions

The New York rules focus on three "new" aspects of marketing and business development:

* advertisements, defined as public or private communications for the primary purpose of selling legal services;

* solicitations, a subset of advertising, targeted at a specific individual or group of prospects; and

* all computer-accessed communications, not limited by the advertising definition and covering all electronic communications from Web sites through email and IM.

These definitions are both broad and vague. When is a primary purpose evident? How can you tell that "pecuniary gain" is a significant motive? When is email marketing as compared to informational or good manners?

Exemptions to the Basic Definitions

Exemptions only serve to make the issues more confusing.

The key ones are:

* Advertisements placed in designated, public media such as radio, TV, directories, newspapers, magazines, periodicals and their related Web sites are exempted;

* Communications with existing clients and other lawyers, including in-house counsel, are exempt from the advertising rules, as are informational print pieces such as business cards, letterhead, firm signage, etc.; and

* Solicitation rules exempt close friends, relatives and former or current clients, but not lawyers who are part of the targeted groups. RFPs and other requested business development materials are also exempt from the solicitation rules.

Again, the exemptions raise more questions. Is a company an existing client only during the period when the firm is working on specific matters for them, or is it a current client between explicit engagements? Who is a close friend? Are attorney announcements advertising or information as to changes at a firm?

A Heads-Up for Unprotected Consumers

Two key warning tags are required to prevent the unsophisticated from a legal snare.

* "ATTORNEY ADVERTISING" must appear on the home page of Web sites, the first page of printed material, inside self-mailer pieces and the subject line of email. Billboards are not mentioned;

* The disclaimer, "Prior results do not guarantee a similar outcome" must accompany any language that creates the expectation about results lawyers can achieve, or compares lawyers/law firms, or uses client testimonials/ endorsements or describe the quality of services provided. In addition, clients cannot comment on current matters, and written permission must be procured before using client names in covered advertisements or solicitations. Such language also must be provable as of the date it is used. Finally, if an endorsement is paid for, that fact must be noted;

* Truth in advertising admonitions;

* Use of actors must be disclosed;

* No use of eye-catching techniques that are irrelevant to the selection of counsel, such as pretty girls, short skirts, etc. No photos of false legal documents;

* No statements or claims that are false, misleading, deceptive or violate any other disciplinary rules; and

* No language implying results such as a Web site URL that says www. …