nycla attorney advertising pres 2013
DESCRIPTION
A brief history of attorney advertising and current state in NY State. Presented at New York County Lawyers Association CLE in 2013,TRANSCRIPT
MARKETING AND SOCIAL MEDIA TRENDS FOR ATTORNEYS
Ron Idra, Esq. Bruce K. Segall
April 25, 2013
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TOPIC 2
ATTORNEY ADVERTISING: ONLINE / SOCIAL MEDIA PRACTICES
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A BRIEF HISTORY OF ATTORNEY ADVERTISING
1908 1977 1983-5 1995 2005 2010
1800’s - RelativeFreedom
Restrictive Period
ABA Model Rules and additional
rulings
Very restrictive
rules overturned in
New York
Bates vs. State of Arizona -Immediate aftermath
Internet is born
Birth of social media
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ATTORNEY ADVERTISING HISTORY
Relative de facto freedom, with debate starting in 1850’s
1908 – ABA first code – Canon of Ethics
In practice, some advertising continued and rules loosened
RelativeFreedom (1800’s)
Restrictive Period (1908-
1977)
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ATTORNEY ADVERTISING HISTORY (CONT)
1970’s environment – Consumer groups and government attacks
Recent law grads with a legal clinic believe they need advertising
Arizona Supreme Court ruling Supreme Court upheld advertising
- under First Amendment - stronger than counterclaims- right to advertise prices for services
States still had right to regulate advertising
Bates vs. State of Arizona
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ATTORNEY ADVERTISING HISTORY (CONT)
Opening of “floodgates” vs.
Narrow interpretation left open questions
Predictable amount of brash advertising for personal legal services But most, even for personal legal services,
has been unremarkable
By 1978: ABA approves TV advertising DOJ drops lawsuit
AfterBates vs. State
of Arizona
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ATTORNEY ADVERTISING HISTORY (CONT)
1983:Model Code of Professional Responsibility
Model Rules of Professional Conduct1985:Lawyer dignity can not be regulated per Supreme Court
ABA focuses on 10 aspirational goals
1980’s - ABA Model Rules
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ATTORNEY ADVERTISING HISTORY (CONT)
Internet is born 2002 Amendment to Model
Rules. allow referral groups mail sent to those in need of
legal services to be labeled as "Advertising Material" on the outside of the envelope.
1990’s - Early 2000’s
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RECENT DEVELOPMENTS IN NY STATE
2005 2007 2010 2010
NYSBA Task Force on Attorney
Advertising Report
New York Rules of Professional
Conduct Amended
New York Rules of Professional
Conduct Amended
Alexander vs. Cahill – Courts Rule Mainly Against New
Rules
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ATTORNEY ADVERTISING HISTORY (CONT)
Identified key issues with current advertising:1. False or misleading advertisements2. Addressing emerging media3. Jurisdictional and enforcement issues4. Waiting period prior to personal injury
advertising Made four recommendations
1. Changes to Code of Professional Responsibility
2. Adopt official advertising guidelines and policy of bar
3. Attorney Advertising Disclaimers4. Greater enforcement of Advertising rules
NYSBA Task Force on Attorney
Advertising
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ATTORNEY ADVERTISING HISTORY (CONT)
March 2 – Changes to Advertising Rules published
July 23rd - James Alexander, Alexander & Catalano challenged rules on First Amendment grounds Using slogan “The Heavy
Hitters”
2007 Developments
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ATTORNEY ADVERTISING HISTORY (CONT)Alexander Vs. Cahill – Courts Rule Mainly Against New
Rules
March 2010 US Court of Appeals decision on: Content-based advertising restrictions
Client testimonials Portrayal of judges or fictitious law firms Attention-getting techniques Trade or nick names that imply results
30-day moratorium in targeted communications regarding personal injury
Court of Appeals - upheld lower court’s rejection of content
based advertising restrictions- With the exception of fictitious law firm names
- upheld lower court’s upholding of 30 day moratorium
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ATTORNEY ADVERTISING HISTORY (CONT)
Distinction between “misleading” and “potentially misleading”
Useful Reference -Report of the Committee on Standards of Attorney Conduct and the Task Force on Lawyer Advertising on Changes to the New York Rules of Professional Conduct in Light of Alexander v. Cahill”
Extensive Disclosure requirements remain
New York Rules of Professional
Conduct Amended 2010
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ATTORNEY ADVERTISING HISTORY (CONT)
Current StateAttorney advertising has an enigmatic element Values that act as opposing “pulls”
Even post-2010 ruling, New York generally regarded as more highly regulated than other
states
“Professionalism” Access & Freedom of Trade
Small Community Mass, urban societyPersonal legal services Corporate law
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CONCLUSION: ATTORNEY ADVERTISING KEY TIPS
New York Rules of Professional Conduct pp. 163 – 167 is an excellent summary
Labeling any marketing-related email as “Attorney Advertising” in the subject line may seem onerous. However, many exceptions exist: Current clients (interpreted “more broadly” than “for purposes of
conflict of interest analysis”) Former clients Certain newsletters and client alerts The “primary purpose is general awareness and branding, rather
than the retention of the law firm for a particular matter” Participation in an educational program
Solicitation as a subset of advertising No solicitation “by in-person or telephone contact or by real-time or
interactive computer-accesses communication” e.g. pop-up ad “unless the recipient is a close friend, relative, former client or client.”
Filing of solicitation as directed on pp. 175-6 of New York Rules Use of domain names that do not include name of lawyer or law firm are
permitted under certain circumstances (p.183)
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QUESTIONS? CONTACT US
Bruce K. Segall
PresidentMarketing Sense for [email protected](914) 980-4703www.marketingsense2.comwww.linkedin.com/in/brucesegall