Things have gotten so bad that people are reluctant to wish one another a "Merry Christmas."
We've also reached a point where one is fearful of referring to jolly Saint Nick as "Santa Claus" ... or even as "Saint Nick," for that matter.
And, while they're at it, the "PC police" have imposed restraints on poor Santa's speech.
Have they gone too far? Without question.
But you certainly won't counteract that trend by politicizing the holiday.
Within the last week, Republican presidential candidate Mike Huckabee crossed the line by introducing a "Christmas" theme into a "political" ad.
In a commercial entitled "What Really Matters," Huckabee, a former Baptist minister, notes as follows:
“Are you about worn out of all the television commercials you’ve been seeing, mostly about politics? I don’t blame you.
At this time of year, sometimes it’s nice to pull aside from all of that and just remember that what really matters is the celebration of the birth of Christ and being with our family and our friends.”
What really matters, Mike, is the separation of church and state.
We already realize that Americans are free to pray to whomever (or whatever) they choose, and would prefer if political leaders spared us the proselytizing and obvious pandering.
Our next president's focus should be on substantive issues of concern to all Americans. Huckabee's message shows that he is unwilling or unable to avoid imposing his faith-based beliefs on others and that he will allow religion to cloud his judgment. (That concerns us.)
Is Mike exploiting faith to garner votes? Did he misuse public funds (and violate federal law) in order to disseminate an overtly religious message?
We certainly think so.
Should be interesting to see if Huckabee gets zapped for his zealotry.
Would you believe that John J. Doherty, Commissioner of the New York City Department of Sanitation, has sent out a letter threatening every candidate who is on the ballot this coming election cycle?
In a copy of the correspondence we received earlier today, Commissioner Doherty warns candidates of a local law which authorizes the imposition of fines and penalties against those who post a "handbill, poster, notice, sign, advertisement, sticker or other printed material" on city property.
Trees, lampposts, telephone poles, public utility poles, public garbage bins, bus shelters, bridges, elevated train structures, highway fences, parking meters, mailboxes, traffic control devices, traffic signs, benches, hydrants, and public pay phones are all off limits.
And, should a candidate lapse, there's a fine of no less than $75 (and as much as $150) PER PIECE of printed material found violative of law, which can add up to one hefty ticket.
The Commish ain't talking trash, folks! (Or is he?)
Our friends at Scorpion Design have prepared a demo reel showcasing their website video services, and they've selected two of our partners, Daniel Finkelstein and Jonathan H. Newman, to serve as representative spokespersons.
Congrats to Dan and Jon! (Next stop: HOLLYWOOD!)
If you'd like to see the guys in action, here's the video:
Yesterday, I got some spam from a respected New York publicist (who was hawking a book to lawyers on marketing their professional practices).
His e-mail offered the following unsolicited advice:
Now that faxes are less used, recipients tend to notice them more. That's good for those of us who are marketing our businesses. Fax messages have gone full circle - from being a good tool, to a bad one, to a good one again. Try sending a fax message to prospects and clients once or twice a year as part of your marketing mix.
Believe it or not, following that guy's suggestion will expose his readers to hefty fines and penalties.
A federal law -- the Junk Fax Protection Act* -- prohibits the unsolicited transmission of faxes to another's facsimile machine and subjects a miscreant to minimum fine of $500 and, when "willful or knowing," damages may be trebled at the court's discretion.
[When the transmission is "volitional," it is "willful," while a "knowing" violation occurs when the sender knew "or should have known" that the transmission was violative of the law.]
Believe it or not, even if the unsolicited fax were sent inadvertently or accidentally, a minimum liability of $500 applies. (A party may recover its "actual monetary loss ... [or] $500 in damages for each such violation, which is greater ....")
A sender may evade this fine by establishing that the transmission was encompassed by an "existing business relationship" or "EBR." This exception requires that a sender:
have a a preexisting EBR with the recipient;
received the fax number voluntarily from the recipient;
include opt-out information on the fax's first page; and
honor all opt-out requests within a reasonable period of time (not to exceed thirty days).
By way of example, in Bromberg Law Office, P.C. v. Itkowitz & Harwood, Itkowitz & Harwood (I&H) got zonked by the New York County Civil Court with a money judgment for $500 even though an employee had "mistakenly" used an I&H fax sheet when transmitting a solicitation about "law suites" to the plaintiff's law office.
Luckily, in the absence of "scienter" -- deliberate misconduct -- the Civil Court refused to apply the law's treble-damage penalty in that particular instance.
Better watch your back, Mr. P.R. man ... a whole bunch of lawyers may come gunning for you!**
As we reported yesterday, a federal court judge struck a large chunk of the attorney-advertising restrictions that had been promulgated by the Presiding Justices of New York State's four Appellate Divisions.
Many of our readers may be unaware that prior to their implementation, those very same regulations were vetted (and voted on) by local bar associations and eventually reached the House of Delegates of the New York State Bar Association (NYSBA), where they ultimately met with NYSBA's approval.
In my humble opinion, the federal court's decision should be viewed as an embarrassment to all those who played a part in the promulgation of those draconian restrictions.
And, how is it that 267 members of NYSBA's House of Delegates -- many of whom are respected Bar leaders, seasoned trial attorneys, and, practitioners with major white-shoe firms -- failed to recognize the fundamental constitutional infirmities of the restrictions they were embracing?
In an interesting revisionist move, earlier today I received the following e-mail from Kathryn Madigan, NYSBA's President:
NEW YORK STATE BAR ASSOCIATION NOTICE
Office of the President
Dear Lucas A. Ferrara, Esq.:
I wanted to update you on a recent court decision relating to the rules on lawyer advertising recently adopted by the Appellate Divisions.
In Alexander v. Cahill, the U.S. District Court for the Northern District of New York analyzed the lawyer advertising and solicitation rules adopted by the Appellate Division of Supreme Court effective February 1, 2007. The Court upheld many of the rules, but did find some portions unconstitutional as protected free speech under the First Amendment. The decision is available online at www.nysba.org/AttyAdvCourtDecision.
Our Association’s Task Force on Lawyer Advertising began its work two years ago to address the dual concerns of protecting the public from false or misleading advertising or solicitation by attorneys while recognizing the legitimate interests of lawyers in informing the public about legal services. We are gratified that the Court has recognized this balance of interests and we are in agreement with the Court's decision, which in many areas referenced the analysis provided by our Task Force. Going forward, we welcome the opportunity to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.
The following provisions of the Disciplinary Rules have been held unconstitutional, and the grievance committees are enjoined from enforcing them:
DR 2-101(C)(1) - endorsements/testimonials from current clients;
DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc.;
DR 2-101(C)(5) - techniques irrelevant to selection of counsel (e.g., a law firm appearing as baseball players);
DR 2-101(C)(7) - nicknames/monikers/mottos that imply an ability to achieve results;
DR 2-102(G)(1) - use of pop-up/pop-under advertisements.
The following provisions have been upheld:
DR 2-102(E) - domain name limitations;
DR 2-103(G) - 30-day rule re solicitation;
DR 7-111 - Communications after personal injury/wrongful death.
It is our understanding that the court system will appeal the decision to the U.S Court of Appeals for the Second Circuit and seek relief from the injunction. Please check my blog for updates: http://nysbar.com/blogs/president.
Best regards. Kathryn Grant Madigan President, New York State Bar Assocaition
1 Elk Street, Albany, NY 12207 • P 518.463.3200 • F 518.487.5517 • www.nysba.org
Did you catch it?
The State Bar was "gratified" that most of the rules they approved were found to be unconstitutional.
How's that for "spin?"
--------------------------
For our other blog posts on the this topic, please use this link: Attorney Advertising
ATTORNEY ADVERTISING RESTRICTIONS ARE UNCONSTITUTIONAL
"VICTORY IS OURS!"
On July 20, 2007, in a 30-page decision, Judge Frederick J. Scullin, Jr., Senior United States District Court Judge of the Northern District of New York, enjoined and restrained the four Presiding Justices of the New York State Appellate Divisions from enforcing large chunks of the attorney-advertising restrictions that had been recently promulgated.
While Judge Scullin found that the Justices had a "substantial interest to ensure that attorney advertisements are not misleading," they failed to show how their restrictions "materially advanced" that goal.
Ironically, our state court judges did not support their position with the requisite evidence, such as "statistical or anecdotal evidence of consumer problems with or complaints about misleading attorney advertising." In fact, the federal court described the record in that regard as "notably lacking."
In addition, the state court judges were unable to show that the restrictions were "narrowly tailored." In other words, Judge Scullin was of the belief that most of the restrictions were "broader than reasonably necessary."
As a result, the following provisions were stricken as unconstitutional:
DR 2-101(C)(1) - endorsements/testimonials from current clients;
DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc. (the court thought a disclaimer would be sufficient);
DR 2-101(C)(5) - techniques irrelevant to selection of counsel (e.g., a law firm appearing as baseball players);
DR 2-101(C)(7) - nicknames/monikers/mottos that imply an ability to achieve results; and
DR 2-102(G)(1) - use of pop-up/pop-under advertisements.
Only the following provisions were upheld:
DR 2-102(E) - domain name limitations;
DR 2-103(G) - 30-day moratorium on contacting victims; and
DR 7-111 - communications after personal injury/wrongful death.
Our congratulations to Public Citizen Litigation Group for its outstanding work and our thanks for its ardent advocacy on behalf of all New Yorkers.
For a copy of the federal court decision, please use this link: Alexander v. Cahill
--------------------------
For our other blog posts on this topic, please use this link: Attorney Advertising
Here's a case that is likely going to make its way to our state's highest court, but we're not quite sure why.
Kobrand Corporation -- a purveyor of alcoholic beverages -- was involved in a dispute with its insurance company, Great Northern Insurance Company, over the insurer's responsibility to defend a series of lawsuits involving Kobrand's marketing practices. (Kobrand was being sued for allegedly encouraging underage drinking.)
Kobrand contended that its insurance policy covered "all damages" from "injury" arising from "selling, serving or furnishing of any alcoholic beverage" and that Great Northern thus had a obligation to defend.
The New York County Supreme Court did not believe that coverage was triggered. And, in its affirmance on appeal, the Appellate Division, First Department, noted as follows:
Since the underlying complaints seek damages based on alleged unlawful marketing of alcohol to minors, the court properly held that advertising and marketing techniques do not constitute "selling, serving or furnishing" of an alcoholic beverage, and thus there is no duty to defend.
A lone dissenter took issue with the majority's analysis and suggested that there is no true difference between "advertising" and "selling" a product. But that can't be right.
The way we learned it in law school, an advertisement is an "offer" to sell a product or service. It is not an actual sale. (After all, you can spend a fortune on promotion, but if people ain't buying your product or service, it could all be for naught.) To characterize "advertising" as "sales" would expand the range of parties that would be subject to liability for a product's promotion and would needlessly stifle the ability of businesses to bring products to market.
Darden Restaurants, Inc., "the world's largest casual dining restaurant company" operates all those "Red Lobster," "Olive Garden," "Bahama Breeze," "Smokey Bones Barbeque & Grill," and "Seasons 52" restaurants you'll find throughout the country. (According to the company's website, each year some 300 million meals are served at these 1400 establishments.)
The restaurateur got into a bit of a pickle when the Federal Trade Commission (FTC) charged Darden with "deceptive trade practices" under federal law. It was uncovered that Darden was charging its customers a "dormancy fee," when gift cards purchased from the chain were not used after a certain period of time. Apparently, appropriate disclosures were not made to customers at the time of purchase or the fine print on those cards was obscured or rendered illegible by the point type or graphic utilized.
In a three page complaint, the FTC alleged that customers were unaware of the monthly fee until such time as they attempted to use the gift cards and "discovered that the cards held little or no remaining value."
According to the FTC, Darden:
failed to disclose, or ... failed to disclose adequately, that, after a specified number of consecutive months of non-use (i.e., 15 or 24 consecutive months), ... a $1.50 fee per month [was deducted] from the value of their gift cards until they are used again. This fact would be material to consumers in their purchase or use of [the chain's] gift cards. The failure to disclose this fact, in light of the representation made, was, and is, a deceptive practice.
In a press release dated April 3, 2007, the FTC announced that Darden has agreed to sign a "consent order" modifying its gift-card practices. The proposed order provides, in part, as follows:
IT IS ORDERED that respondents, directly or through any corporation, subsidiary, division, or other device, in connection with the labeling, advertising, promotion, offering for sale, sale, or distribution, in or affecting commerce, of any Darden Gift Card, shall not fail to disclose clearly and prominently:
A. the existence of any expiration date or Covered Fee associated with the Darden Gift Card; provided, however, that, at the point of sale, prior to purchase, respondents shall not fail to disclose clearly and prominently all of the material terms and conditions of any expiration date or Covered Fee associated with the Darden Gift Card; and
B. on the front of each Darden Gift Card, the existence of any expiration date or Covered Fee associated with the Darden Gift Card.
Darden has furthered agreed to make restitution and will restore the fees which were wrongfully collected from its customers' gift cards and will post notice of that refund on its various websites.
We believe the proposed resolution is flawed and should not be given final approval by the FTC. The agreement assumes that those Darden customers who were harmed by the company's "deceptive trade practice," kept their valueless gift cards. Quite unlikely, don't you think?
Since we fail to see how consumers will truly be made whole by this outcome, we're of the opinion that the settlement lacks claws legs.
For a copy of the FTC's complaint, please use this link: Darden Complaint
-------------------------
The FTC is currently accepting comments from the public with regard to this proposed settlement. Comments should be forwarded to the FTC, Office of the Secretary, Room H-135, 600 Pennsylvania Avenue, N.W., Washington, DC 20580, on or before May 2, 2007.
BRIEF FILED IN FEDERAL "ATTORNEY ADVERTISING" CASE
As we have previously reported, York's new attorney advertising regulations are the subject of a federal lawsuit filed by Public Citizen, Inc., a nonprofit consumer advocacy group.
The litigation seeks to stay the enforcement of these overly broad and restrictive rules and to have them declared unconstitutional. To that end, Public Citizen recently filed a memorandum of law in support of its request for a preliminary injunction.
In a 25-page brief, which challenges the constitutionality of the new regulations in their entirety, Public Citizen argues, in part, as follows:
None of the applications of the rules relates in any way to the state’s interest in protecting consumers of legal services from false advertising. Moreover, far from being narrowly tailored, the rules would apply to a wide range of speech that the state has no interest in regulating. The rules would thus unconstitutionally burden the public’s interest in receiving important noncommercial communications.
As we anticipated, the first federal lawsuit has been filed challenging the constitutionality of New York's new attorney advertising regulations (which took effect yesterday, February 1, 2007).
The litigation, brought by the nonprofit consumer advocacy group, Public Citizen, Inc., against the Chief Counsels of the various Departmental Disciplinary Committees, seeks to stay the enforcement of these overly broad and restrictive rules and to have them declared unconstitutional. To that end, the complaint alleges, in part, as follows:
The ethics rules, as amended ... allow for arbitrary and discriminatory enforcement and impose onerous restrictions on both commercial and noncommercial speech that the state has no legitimate interest in regulating. The amended rules are therefore unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution.
With 100,000 members nationwide, Public Citizen, Inc.'s mission is to "fight for openness and democratic accountability in government, for the right of consumers to seek redress in the courts; for clean, safe and sustainable energy sources; for social and economic justice in trade policies; for strong health, safety and environmental protections; and for safe, effective and affordable prescription drugs and health care."
As Greg Beck, the organization's attorney, correctly noted in a press release, "While other states have debated limits on lawyers’ advertising, the New York rules go further than any other state in imposing burdensome restrictions on legal free speech ... New York has also taken the lead in interfering with and regulating legal Internet communications."
We wholeheartedly support Public Citizen's efforts and wish the organization much success.
The opposing voices to the attorney-advertising regulations, proposed by the Presiding Justices of the Appellate Division of the State of New York, reached a fitting crescendo with the release of a 29-page document jointly authored by the Public Citizens Litigation Group, the American Civil Liberties Union, and the New York Civil Liberties Union. Filled with biting criticism and analysis, these respected non-profit, non-partisan, organizations ultimately concluded that the proposed regulations are constitutionally infirm and unjustifiably infringe upon commercial and noncommercial speech.
The thrust of the group's position can be summed up by the following excerpt:
In short, the proposed rules would prohibit or unreasonably burden a wide range of speech for which there is no evidence that consumers would be misled. Instead of helping consumers, the proposed rules would serve only to stifle legitimate competition, making it more difficult for consumers to learn of their rights and ultimately making legal services more expensive for everyone.
Hopefully, the Presiding Justices of the Appellate Division will take heed and drastically modify the proposed rules or withdraw them in their entirety.
You've seen these ads. They arrive via e-mail or can be found in some popular magazines and read something like this:
If the size of your penis torments you, we have the solution...[o]ur specialized doctors will widen or make bigger the penis ... don't feel frustrated or ashamed of intimacy because your problem now has a solution.
Many are unaware that such an augmentation procedure is riddled with risk. The American Urological Association (AUA) guides as follows:
The American Urological Association ... considers injection of fat cells for increasing penile girth (width) to be a procedure which has not been shown to be safe or effective.
The AUA also considers the cutting of the suspensory ligament of the penis for increasing penile length in adults to be a procedure that has not been shown to be safe or effective.
Apparently, the Plaintiff in Corcino v. Filstein, was unfamiliar with these risks, injured while undergoing penile-augmentation surgery, and suffered "permanent injury." He later commenced a lawsuit in the New York County Supreme Court alleging medical malpractice, lack of informed consent, deceptive business practices, and loss of consortium (i.e., inability to have sexual relations with one's spouse).
When the defendant moved for summary judgment--a disposition of the case based solely on the papers presented by the parties--the Supreme Court shafted the defendant's request in its entirety, finding that a formal hearing or trial was needed to address the issues in dispute. On appeal, the Appellate Division, First Department, disagreed with that part of the lower court's order which refused to dismiss the deceptive-business practices claim. The governing statute--General Business Law section 349--requires that the wrongdoer engage in "consumer-oriented conduct that was materially deceptive or misleading, causing injury ...." Since the advertisement did not guarantee results, offer "misleading statistics on success rates," or assert that the procedure was risk-free, the appellate court believed that that part of Plaintiff's case that could not be allowed to continue.
While a surgery-related release form had been signed by the Plaintiff, an expert's affidavit raised questions as to whether the doctor complied with his "medical obligations under the circumstances," and whether Plaintiff had been fully apprised of the procedure's complications and risks. Additionally, since "cutting the suspensory ligament and grafting the fat around the patient's penis" were "inherently risky," and deviated from "acceptable medical practice," the appellate court believed that the defendant's purported malpractice deserved further inquiry.
While the outcome of the appeal was certainly favorable to the Plaintiff, the victory strikes us as Pyrrhic.
On Thursday evening, October 19, 2006, my partner and co-author, Lucas A. Ferrara, was the keynote speaker at a dinner event sponsored by The Judicial Title Insurance Agency LLC at the Grand Hyatt New York (Park Avenue at Grand Central Terminal).
For two hours straight, Lucas waxed eloquent on such timely topics as the Office of Court Administration's proposed regulations regarding attorney advertising and solicitations, and provided a critical look at the latest cases impacting cooperatives, condominiums, regulated housing, and other real estate.
Lucas's presentation was lively, entertaining, informative and--based on the reaction of those in the ballroom that evening--enthusiastically received. Many described his performance as "controversial," "energetic," "enthusiastic," "thought-provoking" and "witty."
In addition to some very insightful analysis, the standing-room-only crowd of some 275 attendees also received an added bonus of two CLE credits.
After the event, representatives of The Judicial Title Insurance Agency informed me that this was their most successful event to date. And, if you've ever seen Lucas in action, it's no wonder why. His passion for the law is indefatigable and is relayed with a healthy dose of humor and sarcasm.
Well done and congratulations!
------------ Note: Finkelstein Newman LLP is an accredited CLE provider of an eight credit course on landlord-tenant law. To arrange for a presentation, please contact Managing Partner, Jonathan H. Newman, for additional details.
FTC OBJECTS TO ATTORNEY-ADVERTISING RULE (GO FIGURE!)
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
-----------------------
*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
Ever wonder what's the deal with all those posters and handbills that grace our fair city?
Well, did you know that these common annoyances--and seemingly endless assaults on our senses--violate local law and can expose offenders to substantial fines and penalties? Apparently, neither do many of the candidates running for public office. (Around this time of year, you can't help but get bombarded with their printed materials.)
In an effort to reduce this "litter," John J. Doherty, Commissioner of the New York City Department of Sanitation, sent a letter to all local candidates reminding them to comply with the "Poster Law." (New York City Administrative Code sections 110-119 to 10-121) This local regulation prohibits the placement of "printed matter" on city-owned property and is quite expansive in scope.
"Printed matter," includes--but is not limited to--handbills, posters, notices, signs, advertisements, and stickers. While the term "city-owned property," encompasses everything from benches, bridges, bus stations, elevated train stations, hydrants, lampposts, parking meters, public pay telephones, to traffic cones.
Violators can end up walking away with more than just a slap on the wrist. The fine for the first violation can range from $75 to $150. Subsequent breaches will run from $150 to $250; with each posting comprising a separate and distinct violation of the law. So, in theory, 200 posters could expose a candidate to a maximum fine of about $50,000!
What is interesting about this ordinance, is that the person whose name, telephone number or other identifying information appears on the posting is presumed to be responsible for violating the law (and has the burden of proving otherwise).
While this law is a great way to reduce pollution, and certainly not a bad revenue generating device for the city, ultimately, it might prove cheaper--and a lot more effective--for candidates to take out newspaper ads or to air local TV commercials.
How's that for "political correctness?"
For a copy of Commissioner Doherty's letter to candidates, please click on the following link: "Poster Law" letter
Lawyers are already governed by an overwhelming array of regulations and restrictions. By way of example, we've already got rules which dictate:
how we should behave [see, e.g., DR1-102(A)(2) (lawyer may not engage in "conduct that adversely reflects on the lawyer's...fitness as a lawyer"); DR7-106(C)(6) (lawyers may not engage "in undignified or discourteous conduct which is degrading to a tribunal")];
what we must do when we are being hired or "retained" by a client [see, e.g., 22 NYCRR section 603.7 (written agreements required for contingency fee, personal-injury cases); 22 NYCRR section 1400 et seq. (written retainer required for domestic-relations matters); 22 NYCRR 1215 (written retainer required when services are expected to exceed $3,000 or more)]; and
how we collect our fees in the event of a dispute [see, e.g., 22 NYCRR Part 137 (fee arbitration and notice requirements)].
The last thing we need are restrictions that are fundamentally violative of our constitutional entitlement to freedom of speech and expression.
If regulators have their way, the website you are currently viewing, and others like it, may violate newly proposed standards of conduct that are slated to become effective on or about November 1, 2006. The proposed changes, which have been released for public comment until September 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 services." If we take this definition to its logical extreme, any time I am invited to speak at a public event, I may be engaged in "advertising." And, if that's the case, I may be required to begin or end my remarks with certain "disclaimers," like:
"Prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours, in which a lawyer or law firm may be retained."
Unfortunately, the absurdity does not end there. Should I be so bold as to send you an e-mail that could be construed as an "advertisement" or a "solicitation," (as those terms are currently defined by regulators), I will be required to include in the subject line of my communication the words, "ATTORNEY ADVERTISING."
These and other restrictions now under consideration are so intrusive and overly broad, that a number of respected advocates have openly expressed their criticisms and concerns. For some incisive comments authored by noted real-estate attorney, Joshua Stein (in his personal capacity and not on behalf of his firm or other organization), we commend you to his website (www.real-estate-law.com) where he has posted his paper entitled, "Tangling Up the Web for Lawyers."
In that document, Mr. Stein aptly notes, in part, as follows:
I can understand having warning labels for poisons, airbags, flammable clothing, dangerous intersections, or hazardous waste. But I cannot see why attorney advertising falls in a similar category. Are even the worst members of our profession that evil or dangerous? Really? (And if they are, don't we already have ways to deal with them, without imposing a Warning Requirement on millions of routine email communications in the practice of law?)
As its main practical effect, any Warning Requirement will simply increase the likelihood that people who receive communications from lawyers will discard or delete them without reading them. The phrase "Attorney Advertising" is much like saying: "Please Delete Me as Soon as Possible." Why should lawyers bear that burden when they try to communicate?
By encouraging recipients to delete without reading any e-mail messages they receive from lawyers, the Warning Requirement interferes with educating the public about the law....
We wholeheartedly agree with Mr. Stein and encourage you to join us in objecting to these new rule changes. Address your comments (prior to September 15, 2006) to:
Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004
For a copy of "Tangling Up the Web for Lawyers," by Joshua Stein, Esq., please click on the following link: "Tangling Up the Web for Lawyers" or you can visit Mr. Stein's website at: www.real-estate-law.com (search for the link that reads, "This Website May Become Unethical on November 1.")
----------------- NOTE:After this piece was originally posted, the deadlines delineated herein were extended by OCA. To view this updated information, please click the first link provided above.
What havoc has "political correctness" wrought? 
Would you believe that 
Yesterday, I got some spam from a respected New York publicist (who was hawking a book to lawyers on marketing their professional practices). 
As we reported yesterday, a federal court judge struck a large chunk of the attorney-advertising restrictions that had been promulgated by the Presiding Justices of New York State's four Appellate Divisions.
Dear Lucas A. Ferrara, Esq.:
Here's a case that is likely going to make its way to our state's highest court, but we're not quite sure why.
