New York Bar Rules Aren't Insane!

[heidi]

Back in 2006, the New York State Bar proposed new rules regarding attorney advertising - you can read some discussion of the original draft of the rules here, here as well as in my fandom_lawyers post here.

You can see the current rules, as approved, in PDF format here and I think it would be a good idea for any attorney, no matter where you practice, and any law student, to look them over.



To paraphrase the press release, New York State Bar Association President Mark H. Alcott issued new regulations announced today that "the new regulations are significantly different from the draft regulations and represent a final product that will provide a balance between protecting the lawyer's right to advertise and protecting the public from overly aggressive and salacious advertisements..."

Basically, lawyers from New York and around the US went ballistic over some of the definitions, and hence, many of those definitions were changed.

Initially, the rules were going to apply to any "public communication or communication to a prospective client..." but now, it seems they're only going to apply to advertisements - and advertisements have now been defined as follows:

Advertisement means any public or private communication behalf of a lawyer or law firm about that lawyer or law purpose of which is for the retention of the lawyer or law communications to existing clients or other lawyers.

It specifically notes that communications to other lawyers, or to existing clients, cannot be deemed advertising.
They're also now applying the same standards to websites as they have to professional cards, professional announcement cards, office signs, letterheads or similar professional notices or devices, which is a good thing, at least for consistency purposes.

And it seems I don't have to worry about my heidi8.com domain name, because:

A lawyer or law firm may utilize a domain name for an internet web site that does not include the name of the lawyer or law firm provided ... the lawyer or law firm in no way attempts to engage in the practice of law using the domain name.

So, I am going to get a separate domain name for work-related emails, and keep heidi8.com for my personal stuff. Yay gmail.com for making this easy and possible! And I have until Feb 1 to do it and let people know about the change.

The one bit I'm curious about the interpretation of is this:

A lawyer shall not solicit professional employment from a prospective client [or] engage in solicitation:
(1) by in-person or telephone contact, by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or current existing client

Is everyone on my flist a close friend? What about a specific filter of 100 people or so? My curiosity is theoretical, and without practical implications, but how many close friends can one have? Does one have to have met a friend in person for the friendship to be close?

I say no. But I don't know if the Bar would agree with me.

While NY lawyers have to keep a copy of all advertisements posted online for one year, they didn't include the initial requirement to file a "copy of each advertisement shall at the time of its initial mailing or distribution ... with the Departmental Disciplinary Committee of the appropriate judicial department." Whew.

Good news for non-NY lawyers: the Bar managed to remove a rule originally in the draft regulations that would have extended New York disciplinary authority to non-New York lawyers practicing or soliciting legal services in New York. The Association objected on the basis that it was overbroad, and it was not included in the final version. Instead, a provision was added to the solicitation rule specifying that the anti-solicitation provisions apply to non-New York lawyers who solicit New York residents.

Anyhow, the gist of all this is, while they're not 100% perfect, they're nowhere near as bad and problematic as they could have been had the originally promulgated rules been approved.

And that makes for a happy new year.

Comments

[enelya-oronar.livejournal.com]

Are there law groupies?

[pot-pal-ashley.livejournal.com]

So what about the advertisements one sees on the subway for lawyers for personal injury? "Just call 1-800-attorney" and other such solicitation? Are these ads illegal? Or do they escape the limitations of the law as stipulated? And where's the line of communicating with other attorneys?
An interesting set of facts but confusing to this green law student.

[heidi8.livejournal.com]

You might want to read over the redlined version - there are some tweaks to those rules, but basically, as long as certain language is there and they stay inside certain parameters, they're allowed.

[rivkat.livejournal.com]

I don't know about the "heidi8.com" -- isn't that rule an and rule? That is, you have to disclose your actual name on the site and avoid the practice of law. This may be okay for you, but it actually creates huge problems for me, because my real name and fandom names are not the same. I don't know whether I'm going to take any action -- it seems to me that the rules do not intend to, and constitutionally could not, regulate my anonymous/pseudonymous speech unrelated to the practice of law.

Separate issue: it seems to me that heidi8.livejournal.com is also a domain name that you use, and so you have to follow the disclosure etc. rules on it too.

[heidi8.livejournal.com]

Even if it is, I don't actually use heidi8.com for any webpage-hosting. It's basically an email-only domain, so there aren't any pages that I can put my name up on - and I don't see a requierment to create a page if there isn't one up there in the first place. I have a sort of pointless index page that I can take down completely, and if I don't use the email for the practice of law, then I should be ok.
And I agree with you that the rule does still seem to restrict speech at any domain name that you utilize, but not if you only utilize it for email.

I didn't even think about misdefining "domain name", though, but when you mentioned it, I went to google and typed in "domain name" and "definition" and meh! Some entities define it as "The unique name of an internet website..." And even InterNIC says:

The Domain Name System (DNS) helps users to find their way around the Internet. Every computer on the Internet has a unique address - just like a telephone number - which is a rather complicated string of numbers. It is called its "IP address" (IP stands for "Internet Protocol"). IP Addresses are hard to remember. The DNS makes using the Internet easier by allowing a familiar string of letters (the "domain name") to be used instead of the arcane IP address. So instead of typing 207.151.159.3, you can type www.internic.net. It is a "mnemonic" device that makes addresses easier to remember.

which seems to imply that the www is part of the domain name, but it shouldn't be because that's not something that's an element of the registration. If it was, I should be able to get heidi.law.com, and I can't because law.com owns the law.com domain name. ICANN, on the other hand, defines it exclusive of the www (although it doesn't mention equivilents) here at 2(a)(iv).

Do you think we can get a clarification of the definition of Domain Name and whether it's meant to be an "and"? I mean, it's a brand new addition that had no commenting on it, so I think the vagueness of it should be highlighted.

[rivkat.livejournal.com]

I think it would be great to get an acknowledgement that they can't actually regulate noncommercial pseudonymous speech, but I don't know if there's any way to do that other than by challenging the rules. I haven't seen discussion of this on lawyer blogs.

[judyserenity.livejournal.com]

When I read the title, my first thought was that "New York Bar Rules" had to do with closing times, how many drinks a patron could be served, etc. Hmm, maybe that's why I'm not a lawyer...