To The Readers Of The Metropolitan Corporate Counsel :
The New York bar has been busier than expected this summer because the Presiding Justices of our four appellate divisions have issued proposed amendments to the Code of Professional Responsibility that become effective on November 1, 2006. In June, the Office of Court Administration issued a public notice requesting comments to the rule changes by September 15. New York's bar associations have prepared comments to the Proposed Rules and I am reluctant to speculate about the details of what that ongoing effort will generate.
The background to the proposed changes began last year when the New York State Bar Association (NYSBA) prepared a lengthy report on lawyer advertising and recommended extensive changes to the rules governing the solicitation of legal business, particularly with respect to broadcast advertisements and internet websites. Currently, internet websites are not specifically addressed by New York's Code of Professional Responsibility.
NYSBA's report indicated that approximately one third of the advertisements were potentially misleading. Approximately 90 percent of the ads failed to satisfy the disclosure requirements governing fee arrangements. More than half neglected to comply with existing requirements regarding disclosure of the name, address and telephone number of law firms employing broadcast advertisements. The report acknowledged that the staffing of the departmental disciplinary committees is insufficient to meaningfully enforce the current rules governing ethically permissible advertising and it strongly recommended increasing the necessary staffs to monitor and enforce the rules. The report also recommended expanding the filing and retention of advertising materials so that they can be better reviewed by disciplinary authorities for appropriate action where required. With minor modifications, the report and recommendation were approved at the January meeting of NYSBA's House of Delegates.
The proposed rules are applicable to every lawyer (even somebody who is not admitted in New York) who solicits business via the internet, television or radio in New York. The new rules' proposed definitions of 'advertising' and 'solicitation' are extremely broad and that breadth will probably engender significant comment. While the proposed rules contain no absolute 'prohibition' on advertisements and solicitations (except for deceptive, misleading or false advertising), they mandate the inclusion of disclaimers in advertising materials that contain qualitative or comparative statements. For example, only statements that are objectively verifiable can be disseminated and if comparative statements or client testimonials are used, a disclaimer must be included stating that the prior results do not predict future outcomes.
Perhaps the most controversial proposed rule is one imposing a 30-day ban on soliciting legal business from accident victims - a provision similar to the one upheld by the U.S. Supreme Court in Florida Bar v. Went For It (1995). This type of ban troubles many lawyers because it permits insurance companies or other third parties to obtain waivers or witness statements from accident victims and their families without any warning that the person being interviewed should consult counsel before compromising his or her rights. Indeed, the proposed rule may even invite that sort of opportunistic behavior by insulating an accident victim's family from a lawyer's unsolicited legal advice at the very moment of their greatest need. Many attorneys urge that any prohibition of this nature be modeled on the Federal Aviation Disaster Family Assistance Act, which imposes restraints on solicitations by air carriers and insurance companies comparable to those imposed on potential plaintiffs' counsel.
One rationale for regulating attorney advertising is, of course, the promotion of professionalism among members of the bar. One goal of professionalism is to earn the public's favorable perception and respect. Undeniably, the public esteem of lawyers has plummeted over the last 25 years as shown by a series of annual Harris Poll reports. Among the conclusions offered by Harris is that those polled believed prestigious occupations are ones that help those in need and, consequently, firefighters, doctors and nurses are at or near the top of the list. Making money does not equal prestige; therefore, business executives and stock brokers - two occupations usually associated with wealth - are on the bottom half of the list. Prestige is also not equated with fame. Entertainers and actors - two professions usually associated with being famous - are also in the bottom half of the list, as are athletes.
NYCLA promotes the core values of competence, integrity and collegiality. As professionals, we are duty bound to subordinate our personal interests to the interests of our clients and the integrity of the legal system. As the text of New York's Disciplinary Rules are refined, the organized bar is participating in that process to ensure that the lures of wealth and fame will neither divert our profession's ethical compass nor demean our perception in the eyes of those whom we strive to serve.
Edwin David Robertson