In the name of protecting consumers from false and misleading lawyer advertising, New York is proposing draconian new restrictions on Internet communications and other forms of attorney advertising that will directly impact attorneys who maintain blogs or websites in New York, or in many cases who simply send an email into the state. Instead of protecting consumers, however, the proposed rules will burden completely truthful and non-misleading communication by attorneys, and will serve no purpose other than to deprive consumers of useful information about their legal rights, protect established law firms from competition, and render many aspects of the Internet largely unusable for New York attorneys.
Stripped to their essence, the proposed amendments would define the term "advertisement" extremely broadly as any public communication made "by . . . a lawyer . . . about a lawyer." Sec. 1200.1(k). This definition explicitly includes all forms of communication on the Internet, including websites, email, and instant messaging. Sec. 1200.1(m). There is no requirement that the speech be commercial in nature or related to the lawyer's practice of law.
Because this blog contains information about its contributing attorneys, it would fall squarely within the proposed rule’s definition of advertising. If this blog were located in New York, contributing attorneys would therefore be required by the proposed rules to print a hard copy of the blog every time it is modified. Sec. 1200.6(n). They would then have to store the printout for a period of at least a year, and send an additional copy to the New York attorney disciplinary committee for its records. Sec. 1200.6(n) & (o)(iii). The rules would also require the blog to be branded with the words "Attorney Advertising" and include the names, office addresses, telephone numbers, and lists of licensing jurisdictions of participating attorneys. Sec. 1200.6(h), (j) & (k). Because the blog does not contain the full name of a lawyer or law firm in its URL, the page would need to list the names of participating attorneys in a font at least as large as the largest font on the page (in this case, the names would need to be in at least a 60-point font to match the large banner title). Sec. 1200.7(e)(1). Furthermore, although it surely could not have been intended to reach this broadly, the rule appears to subject any links from a website to these onerous restrictions. Sec. 1200.1(m).
The same rules would also apply to email sent by lawyers to public listservs, and even to private email if it "concern[s] the availability for professional employment of a lawyer or law firm.” Sec. 1200.1(l). Unlike web pages, however, email would have to be saved for a period of three years. Sec. 1200.6(n).
Finally, the proposed rules would impose a litany of other restrictions on attorney advertising that will primarily impact television advertisements, including prohibitions on the use of actors to portray judges, lawyers, or clients; the reenactment of events; and the use of celebrity endorsements. Sec. 1200.6(d). Most of these restrictions would not affect this blog, although, depending on how one reads the language, the picture of the Supreme Court’s facade at the top of the page would arguably run afoul of the restriction on "depict[ing] the use of a courtroom or courthouse.” Sec. 1200.6(d)(6).
Like many state restrictions on attorney advertising, New York’s proposed amendments appear to be intended less to prevent consumer misunderstanding than to prohibit the most effective forms of lawyer advertising. The burdens imposed on attorneys under these rules would be overwhelming and unworkable, would generate untold amounts of useless paperwork both for the attorney and the state disciplinary commission, and would totally undermine the potential of the Internet as a medium for cheap and efficient means of mass communication.
Consumer advocates should obviously be concerned about advertisements that are false or misleading. But they should also be concerned when states restrict truthful and non-misleading advertisements that prevent consumers from receiving useful information about pricing and product or service alternatives. Truthful advertising is a form of speech that is protected by the First Amendment. As the Supreme Court recognized in the landmark case Virginia Pharmacy Board v. Virginia Consumer Council, a "consumer's interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Furthermore, restriction of truthful advertising gives an unfair advantage to established market participants that find customers primarily through referrals and word of mouth. New competitors, who depend on advertising to make their message heard, are locked out of the market. With less competition, prices go up and consumers suffer.
State courts and bar associations for decades have used attorney codes of ethics to restrict competition by limiting the kinds of truthful information that lawyers can communicate to potential clients. But, although the Supreme Court has repeatedly struck down similar rules as unconstitutional, states don’t seem to be getting the message.
New York is accepting comments on its proposed rules, and I'm told the comment deadline has been extended until November 15.