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Eye on Ethics
Do
you have a question about legal ethics that affects your practice? ETHICSearch can
help. For quick and confidential research assistance click here to
send us your questions. New New York Rules on Lawyer Advertising
By Peter H. Geraghty, Director, ABA EthicSearch
On January 4, 2007, the New York State Unified Court System adopted several amendments
to the advertising rules in Canon 2 of the New York Code of Professional Responsibility
(hereinafter the Code) that are due to take effect on February 1, 2007. Many
of these amendments relate to lawyer advertising on the Internet. A redlined
version of Canon 2 showing the amendments is located here
[PDF],
and a memorandum produced by the New York State Bar Association highlighting
the significant changes is located here
[PDF].
Advertisements and computer accessed communications
At the outset, the new Code sections provide definitions of advertisements and “computer
accessed communications.” An advertisement is defined as any public or
private communication made by or on behalf of a lawyer or law firm where the
primary purpose is the retention of the lawyer or law firm. It specifically exempts
communications to existing clients or to other lawyers. A computer accessed communication
encompasses:
...any communication made by or on behalf of a law firm that is disseminated
through the use of a computer device including but not limited to websites,
weblogs, search engines, electronic mail, banner advertisements, pop-up
and pop-under advertisements, chat rooms, list servers, instant messaging,
or other internet presences and any attachments or links related thereto.
DR 2-101(g) of the Code states that a lawyer shall not use a pop-up or pop-under
advertisement in connection with computer accessed communications, other
than on the lawyer’s own website or other internet presence or any
meta tags (keywords that represent the web page’s content), that
would violate a disciplinary rule if displayed.
DR 2-101 (k) states that a lawyer must keep copies of all advertisements
for three years following its initial dissemination. Any advertisement contained
in a computer accessed communication must be retained for one year. A copy
of the contents of any website deemed to be an advertisement
...shall be preserved upon the initial publication of the web site, any major
web site redesign, or a meaningful and extensive content change, but in no
event less frequently than once every 90 days.
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What's in a domain name?
DR 2-102(e) of the Code addresses the use of domain names stating:
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:
- all pages of the web site clearly and conspicuously include the actual
name of the lawyer or law firm;
- the lawyer or law firm in no way attempts to engage in the practice
of law using the domain name;
- the domain name does not imply an ability to obtain results in a matter;
and
- the domain name does not otherwise violate a disciplinary rule.
Several state bar opinions have addressed the ethical issues implicated
in a law firm’s use of domain names. See, New
Jersey Committee on Advertising Opinion 32 (2006), Bar
of the City of New York Opinion 2003-01 (2003), Arizona
State Bar Opinions 97-04 (1997) and
2001-05 (2001), Board
of Commissioners on Grievances and Discipline of the Supreme Court of Ohio
Opinion 99-04 (1999),
and Interpretive
Comment 17 of the State Bar of Texas.
I’m not a lawyer but I play one on TV
DR 2-101 (c) of the Code lists a number of items that are prohibited in an
advertisement. These include the use of actors to portray the lawyer or members
of the law firm or clients, or the use of fictionalized events or scenes
without full disclosure of the fictionalized aspect of the advertisement.
It also prohibits advertisements that are made to resemble legal documents,
and the use of nicknames, monikers, mottos or trade names that imply an ability
to obtain results in a matter. Paid testimonials are prohibited unless the
fact that the person is being paid is disclosed. Testimonials or endorsements
from clients about pending matters are prohibited, as are the use of methods
to attract attention that are irrelevant to the selection of a lawyer, such
as an emphasis on personal traits that are unrelated to legal competence.
ABA resources on lawyer advertising
The ABA Commission on Lawyer Advertising acted as an information clearinghouse
and formulated practice guidelines on issues related to lawyer advertising
until it was sunsetted in 2002. In 2004, the ABA Standing Committee on Professionalism
assumed many of the Commission's responsibilities, and currently maintains
information on lawyer advertising on its Information
on Professionalism and Ethics in Lawyer Advertising Web site, including
the ABA
Aspirational Goals for Lawyer Advertising, articles on
technology, marketing and ethics, Best
Practice Guidelines for Legal Information Web Site Providers,
cases on
lawyer advertising and ethics
opinions on lawyer advertising.
The ABA Standing Committee on Ethics and Professional Responsibility also
occasionally issues ethics opinions on specific fact patterns as they relate
to lawyer advertising in which it applies and interprets the ABA
Model Rules of Professional Conduct.
ETHICSearch is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice. The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.
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