A few months ago, we took issue with the Office of Court Administration's proposed stance on "attorney advertising." Since there already are an extensive array of rules and regulations that govern attorney conduct, we do not believe there is any justification for overly broad restrictions that muzzle constitutional rights to free speech and expression.
If regulators have their way, this website (in its current form), and others like it, will violate newly proposed professional standards that are slated to become effective on or about January 15, 2007. These changes, currently open for public comment until November 15, 2006, seek to overhaul the manner in which attorneys communicate with their clients and members of the general public.*
Under these new rules, an "advertisement" will be defined as "any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer's or law firm's service." If this definition is taken to its logical extreme, any time we speak publicly or privately to a group of individuals--including friends or family--about our professional qualifications or experiences, we may be engaged in "advertising." And, if that's the case, disclaimers and filing requirements will be triggered.
Should I send you an e-mail that could be construed as an "advertisement" or a "solicitation," (as those overly broad terms are currently defined by regulators), I will be required to include in the subject line of my communication the words, "ATTORNEY ADVERTISING."
Now you know things are pretty bad--or good, depending on how you look at it--when even the United States Federal Trade Commission (FTC) takes issue with these changes. By law, the FTC is charged with monitoring and enjoining "unfair methods of competition and unfair or deceptive acts or practices" which affect commerce including, but not limited to, "deceptive and misleading advertising practices."
In a seven-page letter addressed to the New York State Office of Court Administration (OCA), the FTC expressed concern for the adverse impact the proposed changes would have on attorneys and the public-at-large:
The FTC Staff believes that while deceptive advertising by lawyers should be prohibited, restrictions on advertising and solicitation should be specifically tailored to prevent deceptive claims and should not unnecessarily restrict the dissemination of truthful and non-misleading information. As to the proposed amendments, the FTC Staff is concerned that several provisions are overly broad, may restrict truthful advertising, and may adversely affect prices paid and services received by consumers. Moreover, the FTC Staff believes that New York can adequately protect consumers from false and misleading advertising by using less restrictive means....We couldn't believe it.
Even the FTC is suggesting that court officials should consider "less restrictive" regulations. (Does anyone see the irony in that? It's usually the other way around!)
Historically, the FTC has been not been a friend to lawyers. Just a few years ago, that agency required attorneys--much like banks and lending institutions--to comply with the provisions of the Gramm-Leach-Bliley Act (GLBA). Under that particular statute, lawyers engaged in providing certain types of services--including, but not limited to, real-estate settlement, tax-planning or tax-preparation services--were directed to provide clients with initial and annual notices of the attorneys' practices regarding the release and distribution of clients' nonpublic personal information to third parties, despite existing ethical restrictions which prohibit the dissemination of client confidences and secrets.
Although bar associations throughout the country objected to GLBA's applicability and voiced concern for the confusion that would be engendered by compliance with the law, it took federal litigation to quash the government's unwarranted interference with the most fundamental parameter of the attorney-client relationship.** Unless OCA relents, it has been widely reported that the same fate awaits the current set of "attorney advertising" amendments now under consideration.
Join us in objecting to these new rule changes while there is still time. Address your comments and concerns (prior to November 15, 2006) to:
Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004
For a copy of the proposed amendments and latest deadline information, please click on the following link:
Advertising Amendments
For a copy of the FTC's letter, please click on the following link:
FTC Letter
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*Note: Due to the public outcry and criticism, the original comment period was extended from September 15, 2006, to November 15, 2006, and the effective date of the amendments was postponed from November 1, 2006, to January 15, 2007.
** See, e.g., New York State Bar Association v. Federal Trade Commission, 2004 WL 964173 (D.D.C.). For a copy of the District Court's decision, please click on the following link:
http://www.dcd.uscourts.gov/02-810a.pdf