Lawyer Ads in Cyberspace

The NY rules, while providing definitions of many key terms, are considered by many to be ambiguous in their application. For example, the term 'advertisement' is defined as any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, 'the primary purpose of which is for the retention of the lawyer or law firm.' (' 1200.1(k).) It specifically does not include communications to existing clients or other lawyers.

'Solicitation' is defined as any advertisement that is directed to a 'specific recipient or group of recipients' where the primary purpose 'is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain.'
(' 1200.8(b).) Some have questioned whether an advertising standard dependent on an attorney's subjective goal, i.e., 'primary purpose' or 'significant motive,' is a sufficiently clear guideline, pointing out that communications regarding novel law, informational lectures, and the like may be provided with the goal of obtaining business for the lawyer despite their essentially educational purpose.

The term 'computer-accessed communication' is defined in the new rules as any communication made by or on behalf of a lawyer or law firm that is 'disseminated through the use of a computer or related electronic device.' In an apparent effort to make the definition as expansive as possible, the definition specifically includes, but is not limited to, 'web sites, weblogs, search engines, electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, list servers, instant messaging, or other internet presences,' and any attachments or links related thereto. (' 2300.2(l).) Based upon these definitions, the new rules proscribe certain types of advertisement content as well as provide specific requirements concerning the content and retention of computer-accessed advertising.

For example, new DR 2-101(c) declares that an ad shall not include an endorsement from a client with respect to a matter still pending or a paid endorsement by anyone without disclosure of the compensation. The use of any actor to portray a lawyer or client, or a fictionalized event, must likewise be accompanied with a disclosure as to the fictional nature of what is displayed. An ad may not include the portrayal of a judge, fictitious law firm or a fictitious name.

Certain broad types of advertising content is forbidden in the new rules, including 'techniques' that demonstrate a clear and intentional lack of relevance to the selection of counsel, such as counsel exhibiting characteristics that are clearly unrelated to legal competence. Lawyers may not use a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter. An ad may not resemble a legal document. Lawyers are not permitted to contact or solicit potential plaintiffs in mass tort cases within the first 90 days after the event.

Lawyer ads may contain statements discussing the quality of the lawyers' services that are being offered, that are reasonably likely to create an expectation about results the lawyer can achieve or that compare the services of the advertising lawyers with services offered by others. Testimonials or endorsements of clients and former clients are permissible so long as they do not comment on pending matters. Even as to the enumerated permitted advertisements, attorneys may not disseminate advertising that is false, deceptive or misleading or otherwise violate a disciplinary rule and any claims in the advertisement must be factually supportable by the attorney as of the date on which the advertisement is first published and thereafter. Additionally, all such advertisements must be accompanied by the disclaimer: 'Prior results do not guarantee a similar outcome.' Indeed, almost without exception, attorney ads must now be labeled 'Attorney Advertising,' a requirement with particular impact on computer-accessed advertisement.

'Computer-Accessed' Ads

The rules generally require that attorney advertising be clearly designated as such. In connection with Web sites, this means that the label 'Attorney Advertisement' must appear on the home page of the attorney's site. The rules also specify that any e-mail ad shall contain the notation 'ATTORNEY ADVERTISING' in all capital letters in the subject line of the e-mail.

Additionally, the rules define the circumstances under which a lawyer may utilize a domain name that does not incorporate the firm name for Internet or e-mail access. Under DR 2-102(e), a domain name that does not include the name of the lawyer or law firm may only be used on the condition that the actual name of the firm is clearly and conspicuously displayed on each page of the Web site, there is no effort to practice law under the domain name, the domain name does not convey an ability to obtain specific results, and the domain name does not otherwise violate a disciplinary rule. The lawyer, however, can use the domain name as a phone number as well, so long as it does not otherwise violate any rule.

Of great interest to those who advertise heavily on the Internet, lawyers are not permitted to use 'pop-up' or 'pop-under' advertisements except in connection with the lawyer's own Web site. Also forbidden is the use of metatags or other hidden computer codes that, if displayed, would violate a disciplinary rule, including the new provisions.

Finally, the new rules impose approval and preservation obligations on all ads. Because Internet content is so dynamic, the rules impose some particular requirements. DR 2-101(k) requires the pre-approval by lawyers of all of their ads and requires that a copy be retained for not less than three years. Ads contained in a computer-access communication must be retained for at least one year. Additionally, a copy of the contents of any site must be preserved upon the initial publication of the site, any 'major web site redesign,' or a 'meaningful and extensive content change,' but in no event less frequently than once every 90 days.

Challenges Issued

Even before the adoption of the new rules, there were questions as to their scope, and the usual commentary period needed to be expanded in order to accommodate the debate. Additionally, the Federal Trade Commission issued an advisory letter regarding the earlier version of the rules that concluded
that the rules were problematic when viewed against free speech interests. (See www.ftc.gov/os/2006/09/V060020-image.pdf.)

Despite the fact that the rules, as passed, attempted to address many of these concerns, the rules are already being challenged as an unconstitutional constraint on free speech. A federal judge in the Northern District of New York ruled on April 13 that an injunction against enforcement of the rules by unexpected co-plaintiffs ' a plaintiffs personal injury law firm known for its flamboyant, eye-catching ads and a prominent public interest law clinic ' could go to trial, setting the date for June 18. The challenge argues that the rules' application prevents firms from engaging not just in commercial speech, but in political speech as well. (See the Complaint in Alexander v. Cahill, N.D.N.Y., available at www.citizen.org/documents/alexandercomplaint.pdf; see also, John Caher, 'Firm Challenges New Ad Rules: Plaintiffs Claim Restrictions Limit Free Speech and Client Access,' New York Law Journal, Feb. 2, 2007.)

Concern has also been raised that the rules are not designed to protect consumers from misleading or dishonest statements, but to control attorney advertising in order to limit advertising that some consider to be undignified for the profession. For instance, it has been argued that the ban on pop-up or pop-under ads, except as to an attorney's own Web site, disregards the technology that specifically directs pop-ups to those surfers who are seeking sites related to the topic of the pop-up ad. Accordingly, it is argued, the new rules prevent the consumer who is seeking out information as to a specific legal issue from receiving targeted information vis-'-vis pop-up ads.

Similarly, there is great concern that the requirement that 'ATTORNEY ADVERTISING' be included in the subject line of every qualifying e-mail will interfere with the ability of lawyers to provide information to potential parties regarding important legal developments or time sensitive deadlines, because the e-mails will simply be disregarded or worse, stopped from delivery by spam filters.

This and many other concerns are exacerbated by the inexactitude of the definitions that identify advertisements and solicitations on the basis of the attorney's 'primary purpose' to get business, and that disregard the educational value of many attorney communications. For example, most attorneys feel unsure as to whether their publication through Web sites or e-mails of articles, legal updates or evolving law will fall within the ad rules, since these publications are both informational and market driven. The rules are likewise of concern to those attorneys who rely on Web sites that do not list their names, but contain intake screens that potential clients or interested parties can fill in. It would seem that these kinds of Internet-based attorney/client matching platforms do not comply with DR 2-101(e).

Conclusion

Despite attorney unease with the interpretation and application of the new rules, the rules are in effect, and will remain so, unless there is court intervention. Lawyers should therefore carefully reconsider the marketing and advertising steps they take on the Web to determine, in the first instance, the rules' applicability and then, secondarily, whether an exemption might apply.

Shari Claire Lewis, a partner at Rivkin Radler's Uniondale, NY, office, specializes in litigation in the areas of the Internet, domain name and computer law as well as professional liability and medical device and product liability. She can be reached at [email protected].

Nearly 30 years ago, the U.S. Supreme Court decided Bates v. State Bar of Arizona (433 U.S. 350 (1977; available at www.law.cornell.edu/supct/html/historics/USSC_CR_0433_0350_ZS.html), holding that 'blanket suppression' of attorney advertisements was an unconstitutional interference with First Amendment rights. However, the Court also recognized that some regulation of attorney advertising was necessary to protect consumers who lacked legal sophistication. Thus, the Court ruled that statements in lawyer ads that might pass muster in other industries could be misleading and were subject to reasonable regulation as to time, place and manner.

The conflict between the First Amendment right to speech and the necessity and reasonableness of regulation of attorney advertising has continued to evolve since Bates, responding not just to changing mores regarding professional conduct, but to the challenges of new technology media. New York State's new ethical rules governing attorney advertising, which went into effect on Feb. 1, 2007, specifically address the use of Internet and electronic technology to advertise attorney services and serve as an example of how other states may revise their attorney advertising rules as well. (The NY rules are available at www.nycourts.gov/rules/attorney_ads_amendments.shtml.) The new rules go beyond the well-known standard, contained in DR 2-101(a), that advertisements may not contain statements or claims that are 'false, deceptive or misleading.' The changes have generated a great deal of controversy. Nevertheless, the failure to completely understand and follow the rules could lead to sanctions or other penalties that lawyers should make every effort to avoid.

Definitions

The NY rules, while providing definitions of many key terms, are considered by many to be ambiguous in their application. For example, the term 'advertisement' is defined as any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, 'the primary purpose of which is for the retention of the lawyer or law firm.' (' 1200.1(k).) It specifically does not include communications to existing clients or other lawyers.

'Solicitation' is defined as any advertisement that is directed to a 'specific recipient or group of recipients' where the primary purpose 'is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain.'
(' 1200.8(b).) Some have questioned whether an advertising standard dependent on an attorney's subjective goal, i.e., 'primary purpose' or 'significant motive,' is a sufficiently clear guideline, pointing out that communications regarding novel law, informational lectures, and the like may be provided with the goal of obtaining business for the lawyer despite their essentially educational purpose.

The term 'computer-accessed communication' is defined in the new rules as any communication made by or on behalf of a lawyer or law firm that is 'disseminated through the use of a computer or related electronic device.' In an apparent effort to make the definition as expansive as possible, the definition specifically includes, but is not limited to, 'web sites, weblogs, search engines, electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, list servers, instant messaging, or other internet presences,' and any attachments or links related thereto. (' 2300.2(l).) Based upon these definitions, the new rules proscribe certain types of advertisement content as well as provide specific requirements concerning the content and retention of computer-accessed advertising.

For example, new DR 2-101(c) declares that an ad shall not include an endorsement from a client with respect to a matter still pending or a paid endorsement by anyone without disclosure of the compensation. The use of any actor to portray a lawyer or client, or a fictionalized event, must likewise be accompanied with a disclosure as to the fictional nature of what is displayed. An ad may not include the portrayal of a judge, fictitious law firm or a fictitious name.

Certain broad types of advertising content is forbidden in the new rules, including 'techniques' that demonstrate a clear and intentional lack of relevance to the selection of counsel, such as counsel exhibiting characteristics that are clearly unrelated to legal competence. Lawyers may not use a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter. An ad may not resemble a legal document. Lawyers are not permitted to contact or solicit potential plaintiffs in mass tort cases within the first 90 days after the event.

Lawyer ads may contain statements discussing the quality of the lawyers' services that are being offered, that are reasonably likely to create an expectation about results the lawyer can achieve or that compare the services of the advertising lawyers with services offered by others. Testimonials or endorsements of clients and former clients are permissible so long as they do not comment on pending matters. Even as to the enumerated permitted advertisements, attorneys may not disseminate advertising that is false, deceptive or misleading or otherwise violate a disciplinary rule and any claims in the advertisement must be factually supportable by the attorney as of the date on which the advertisement is first published and thereafter. Additionally, all such advertisements must be accompanied by the disclaimer: 'Prior results do not guarantee a similar outcome.' Indeed, almost without exception, attorney ads must now be labeled 'Attorney Advertising,' a requirement with particular impact on computer-accessed advertisement.

'Computer-Accessed' Ads

The rules generally require that attorney advertising be clearly designated as such. In connection with Web sites, this means that the label 'Attorney Advertisement' must appear on the home page of the attorney's site. The rules also specify that any e-mail ad shall contain the notation 'ATTORNEY ADVERTISING' in all capital letters in the subject line of the e-mail.

Additionally, the rules define the circumstances under which a lawyer may utilize a domain name that does not incorporate the firm name for Internet or e-mail access. Under DR 2-102(e), a domain name that does not include the name of the lawyer or law firm may only be used on the condition that the actual name of the firm is clearly and conspicuously displayed on each page of the Web site, there is no effort to practice law under the domain name, the domain name does not convey an ability to obtain specific results, and the domain name does not otherwise violate a disciplinary rule. The lawyer, however, can use the domain name as a phone number as well, so long as it does not otherwise violate any rule.

Of great interest to those who advertise heavily on the Internet, lawyers are not permitted to use 'pop-up' or 'pop-under' advertisements except in connection with the lawyer's own Web site. Also forbidden is the use of metatags or other hidden computer codes that, if displayed, would violate a disciplinary rule, including the new provisions.

Finally, the new rules impose approval and preservation obligations on all ads. Because Internet content is so dynamic, the rules impose some particular requirements. DR 2-101(k) requires the pre-approval by lawyers of all of their ads and requires that a copy be retained for not less than three years. Ads contained in a computer-access communication must be retained for at least one year. Additionally, a copy of the contents of any site must be preserved upon the initial publication of the site, any 'major web site redesign,' or a 'meaningful and extensive content change,' but in no event less frequently than once every 90 days.

Challenges Issued

Even before the adoption of the new rules, there were questions as to their scope, and the usual commentary period needed to be expanded in order to accommodate the debate. Additionally, the Federal Trade Commission issued an advisory letter regarding the earlier version of the rules that concluded
that the rules were problematic when viewed against free speech interests. (See www.ftc.gov/os/2006/09/V060020-image.pdf.)

Despite the fact that the rules, as passed, attempted to address many of these concerns, the rules are already being challenged as an unconstitutional constraint on free speech. A federal judge in the Northern District of New York ruled on April 13 that an injunction against enforcement of the rules by unexpected co-plaintiffs ' a plaintiffs personal injury law firm known for its flamboyant, eye-catching ads and a prominent public interest law clinic ' could go to trial, setting the date for June 18. The challenge argues that the rules' application prevents firms from engaging not just in commercial speech, but in political speech as well. (See the Complaint in Alexander v. Cahill, N.D.N.Y., available at www.citizen.org/documents/alexandercomplaint.pdf; see also, John Caher, 'Firm Challenges New Ad Rules: Plaintiffs Claim Restrictions Limit Free Speech and Client Access,' New York Law Journal, Feb. 2, 2007.)

Concern has also been raised that the rules are not designed to protect consumers from misleading or dishonest statements, but to control attorney advertising in order to limit advertising that some consider to be undignified for the profession. For instance, it has been argued that the ban on pop-up or pop-under ads, except as to an attorney's own Web site, disregards the technology that specifically directs pop-ups to those surfers who are seeking sites related to the topic of the pop-up ad. Accordingly, it is argued, the new rules prevent the consumer who is seeking out information as to a specific legal issue from receiving targeted information vis-'-vis pop-up ads.

Similarly, there is great concern that the requirement that 'ATTORNEY ADVERTISING' be included in the subject line of every qualifying e-mail will interfere with the ability of lawyers to provide information to potential parties regarding important legal developments or time sensitive deadlines, because the e-mails will simply be disregarded or worse, stopped from delivery by spam filters.

This and many other concerns are exacerbated by the inexactitude of the definitions that identify advertisements and solicitations on the basis of the attorney's 'primary purpose' to get business, and that disregard the educational value of many attorney communications. For example, most attorneys feel unsure as to whether their publication through Web sites or e-mails of articles, legal updates or evolving law will fall within the ad rules, since these publications are both informational and market driven. The rules are likewise of concern to those attorneys who rely on Web sites that do not list their names, but contain intake screens that potential clients or interested parties can fill in. It would seem that these kinds of Internet-based attorney/client matching platforms do not comply with DR 2-101(e).

Conclusion

Despite attorney unease with the interpretation and application of the new rules, the rules are in effect, and will remain so, unless there is court intervention. Lawyers should therefore carefully reconsider the marketing and advertising steps they take on the Web to determine, in the first instance, the rules' applicability and then, secondarily, whether an exemption might apply.

Shari Claire Lewis, a partner at Rivkin Radler's Uniondale, NY, office, specializes in litigation in the areas of the Internet, domain name and computer law as well as professional liability and medical device and product liability. She can be reached at [email protected].