NY Adopts New Lawyer Advertising Rules - Effective February 1, 2007

After much debate, including concerns raised by the Federal Trade Commission that the prior proposal would restrict truthful advertising and ultimately harm consumers, the New York State Unified Court System has announced the new attorney advertising regulations that will go into effect February 1, 2007.

The Amendment to Rules Governing Attorney Advertising, which can be found here (with a synopsis published by the New York State Bar Association here), seek to set new standards regarding attorney advertising. The enacted Rules are narrower than the prior drafts but are still sufficiently vague as to regulate communications that one would not consider "advertising". Indeed, while the rules seek to adapt the disciplinary rules to today's marketplace, they fail to consider the technical aspects of Internet, as well as the fact that consumers of legal services are smarter than they are being created.

For example, definition of "Advertising" has been narrowed as communication aimed primarily at securing business. The proposed definition was so broad that it could have covered lawyer-to-lawyer communications and communications with existing clients. Similarly, the definition of "solicitation" has been modified and now clearly exempts attorney responses to requests for proposals or other communications initiated by a potential client.

The Rules include a ban nicknames and mottos -- such as "heavy hitter" or "dream team" -- that imply an ability to obtain results. The Rules permit testimonials, but only from clients that are not currently receiving services.

Attorneys will be required to retain copies of their advertisements for three years but will be required to maintain e-mail and Web site solicitations for only one year.

Lawyers practicing in New York need to carefully consider the Rules and the requirements that they will bring on their communications, whether or not they would consider them "advertisements" in the traditional sense of the word.

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