nycla attorney advertising pres 2013

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MARKETING AND SOCIAL MEDIA TRENDS FOR ATTORNEYS Ron Idra, Esq. Bruce K. Segall April 25, 2013

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A brief history of attorney advertising and current state in NY State. Presented at New York County Lawyers Association CLE in 2013,

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Page 1: NYCLA attorney advertising pres 2013

MARKETING AND SOCIAL MEDIA TRENDS FOR ATTORNEYS

Ron Idra, Esq. Bruce K. Segall

April 25, 2013

Page 2: NYCLA attorney advertising pres 2013

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TOPIC 2

ATTORNEY ADVERTISING: ONLINE / SOCIAL MEDIA PRACTICES

Page 3: NYCLA attorney advertising pres 2013

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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

Page 4: NYCLA attorney advertising pres 2013

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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)

Page 5: NYCLA attorney advertising pres 2013

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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

Page 6: NYCLA attorney advertising pres 2013

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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

Page 7: NYCLA attorney advertising pres 2013

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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

Page 8: NYCLA attorney advertising pres 2013

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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

Page 9: NYCLA attorney advertising pres 2013

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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

Page 10: NYCLA attorney advertising pres 2013

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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

Page 11: NYCLA attorney advertising pres 2013

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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

Page 12: NYCLA attorney advertising pres 2013

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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

Page 13: NYCLA attorney advertising pres 2013

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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

Page 14: NYCLA attorney advertising pres 2013

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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

Page 15: NYCLA attorney advertising pres 2013

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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)

Page 16: NYCLA attorney advertising pres 2013

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QUESTIONS? CONTACT US

Bruce K. Segall

PresidentMarketing Sense for [email protected](914) 980-4703www.marketingsense2.comwww.linkedin.com/in/brucesegall