My sincere thanks to David Giacalone for taking the time to write about where NYSBA stands on lawyer advertising. Hearing from and responding substantively to our readers is, after all, what a presidential blog is all about (or any blog for that matter). But first, a few corrections are in order.
For openers, the State Bar's position on lawyer advertising has not wavered. Since issuance of the Task Force on Lawyer Advertising in October, 2005, the State Bar has undertaken its mission to provide guidance to the legal profession on this important issue that goes to the heart of the profession.
For the record, former NYSBA President, A. Vincent Buzard played no role in an earlier plan by the Monroe County Bar Association to create its own advertising commission, or, for that matter, in the issuance of its own set of MCBA Guidelines. Rather, in June 2005, after he was installed, then President Buzard appointed his own Task Force to study the issues from scratch and to take a fresh look at the subject, a subject that had not been reviewed by the Courts in 30 years. The Task Force reviewed, among other things, the MCBA plan, 50 other states' disciplinary rules, 300+ ads in New York that included both print and computer generated advertising as well as disciplinary and other relevant cases dealing with advertising nationwide.
The Task Force was mindful of the delicate balance that exists between non-deceptive, true and non-misleading ads and a lawyer's First Amendment right to advertise, a right first ensured by the United States Supreme Court decision in 1973 in Bates v. Arizona. At page 72 of the Report (which Mr. Giacalone generously linked in his blog comment), the Task Force openly opposed oversight and censorship by any private bar association and expressly did not accept the MCBA proposal whereby it created its own advertising commission (Task Force Report at p. 78), noting the potential problems with such a scheme due to parochialism and even standards statewide. Moreover, the Task Force pointed out that the MCBA Commission did not have the benefit of government sanction and invited antitrust scrutiny, citing the FTC opinion in American Medical Association 94 FTC 701 (1979). Rather, the Task Force (and the State Bar) urged the Presiding Justices to adopt and oversee an advertising commission, with pro bono attorney volunteers selected to enforce the disciplinary rules.
In achieving a fair balance, the Task Force specifically noted that the Guidelines for Lawyer Advertising adopted by the MCBA (and that the Task Force and our House of Delegates thereafter adopted) were nothing more than "a plain language, straightforward articulation of the existing Code of Professional Responsibility Rules concerning advertising" (Task Force Report p. 73). I invite all readers to review the Task Force Report for what it says and what our House of Delegates subsequently adopted as Association policy. 1
It is no wonder, then, that all of the parties to and subsequently, the Court, in the Alexander v. Cahill decision relied heavily upon the Task Force Report. Indeed, before the debate in the House of Delegates, that Report drew the consensus of virtually every county bar association across New York State represented in the House.
Which brings me to the last and final point of my blog on the subject and this response: by striking a balance between an attorney's right to advertise his or her services and protecting the public from advertising that is false and/or misleading, the Court upheld the Task Force and the State Bar's proposed rules. Specifically, the Court recognized as stare decisis the United States Supreme Court decision in Florida v. Went-For-It, which held that the fifteen day ban on soliciting victims or their families after a personal injury or wrongful death case was constitutional. The Court thus rules in favor of the interpretation advanced by the Task Force in the Report. Further, the Court sided with the State Bar and the Task Force on the rule requiring certain information to appear in the advertisement (ie. name, address of law firm).
For all of these reasons, I did not and do not downplay the role of the State Bar. Indeed I applaud it.
Finally, let me reiterate what I stated in my initial blog post on this issue. Going forward, we welcome the opportunity to continue to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.
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1. Without becoming overly pedantic, I need to correct another misrepresentation by reader David Giacalone: neither the Task Force nor the House of Delegates adopted the regulations aimed at "irrelevant, unverifiable and non-informational ads". Rather, the State Bar agreed that "to the extent that the MCBA guidelines were consistent with the proposed rules" they would be adopted, but otherwise, "they were to be amended and supplemented" depending upon the final version of all the disciplinary rules adopted as a whole and to track the final rules as adopted as a whole by the Committee on Attorney Standards (Task Force Report, p. 82). The State Bar is the drafter of the Ethical Considerations that accompany all of the disciplinary rules. For this reason, you should all watch for the final Official Commentary/Ethical Considerations to the rules that will be considered by the House of Delegates at its next meeting on November 3rd, which are being drafted by members of the Task Force and the Committee on Standards of Attorney Conduct.
Comments (5)
Thank you very much for taking the time to respond at length to my question about the NYSBA position on lawyer advertising. At my weblog f/k/a, I have replied, in Madigan responds on NYSBA's advertising position. I hope this discussion can continue.
Posted by David Giacalone | August 20, 2007 7:01 PM
Posted on August 20, 2007 19:01
Au contraire, reader Giacalone, my response, and a careful review of our Task Force on Advertising Report, does indeed respond to the concerns articulated in your blog entry.
Perhaps the disconnect is this: once the Task Force Report was adopted by the NYSBA, it became the official policy of the State Bar. Prior comments by bar leaders do not trump that policy but are modified accordingly.
As noted in my initial blog on this subject, while I, along with many NYSBA members, would prefer to see attorney advertising to reflect the dignity of the profession, we understand only too well that the First Amendment prohibits abridgement of free speech, including advertising, that doesn't cross the "false and misleading" line. And while we will continue to encourage our colleagues to produce quality, informative and relevant promotion of their services, we must honor those constitutional boundaries.
As for the so-called "misleading educational" program, it appears that reader Giacalone is referring to a Public Service Announcement from the fall of 2005, prior to adoption of the Task Force Report, that featured then President Buzard encouraging the public to turn to personal and professional referrals, as opposed to yellow page ads and other forms of advertising, when choosing an attorney. I agree with that sentiment and don't see that it conflicts at all with our official policy with respect to advertising content. The consumer is better served by the personal or professional referral. Should they choose, however, to make decisions based upon print or broadcast advertising; of course we must respect that choice and do all that we can to protect the public from ads that are false or misleading. Enforcement of that standard rests not with the Bar Association but with our Appellate Divisions.
As for more recent efforts to educate our members about the decision in Alexander, all our members received a blast email from me the day after the decision came out outlining the Court's findings, followed by a more detailed blog entry. The next issue of our State Bar News will also feature an analysis of the decision, as well as the Court's reliance on the findings of our Task Force.
To further our outreach efforts, in the past six months alone President elect Bernice Leber has spoken to the Ulster County Bar Association, the Westchester Woman’s Bar Association, CLE’s on Committee on Ethics and Professionalism (twice), CLE by Committee on Professional Discipline, the House of Delegates in April, and at Section meetings, including Family Law, Tax and Real Property and International.
In addition, Bernice has conducted newspaper interviews in Long Island and Central New York. She has answered questions on New York City Public Radio. Her expertise on this matter is well known and she will continue to work with groups and associations to make our position clear.
Finally, I would also encourage reader Giacalone and others who have tuned into this discussion who are not members of the New York State Bar Association to join us, so that you too may avail yourself of the many benefits of membership, which include similar late-breaking developments in the law, permitting our members to keep current. Our Association also welcomes practitioners, like reader Giacalone, with the time and energy to commit to the wide array of issues, such as attorney advertising, that confront our profession, our system of justice and the public we serve, by joining and becoming active on one of our 70+ Committees and/or our 23 Sections. As the largest voluntary state bar association in the country and the voice of the New York lawyer, we actively seek and promote your involvement.
Posted by Kathryn Grant Madigan | August 21, 2007 11:46 AM
Posted on August 21, 2007 11:46
Thanks for the further clarification. Let me explain why I am still a bit uncertain of your position. The Task Force, and then the House of Delegates by approving the Task Force Report, did two things: (1) state that it did not support "adding content-based restrictions" to the Advertising Rules; but (2) adopted "the Monroe County Bar Association guidelines regarding advertising as the official advertising guidelines and policy of the State Bar.”
The MCBA Guidelines -- which are still the official NYSBA Guidelines -- do contain content restrictions (indeed vague ones that are far too subjective and difficult to follow or apply). As I have argued at my weblog, quoting those Guidelines, they call for lawyers and the public to reject ad content that is “irrational” or not “relevant to the thoughtful selection of counsel,” or that might offend a segment of the community, or “foster disrespect for . . . the legal profession.”
Your own weblog discussion after the Alexander Case continues to muddy the waters. While it declares agreement with the court decision (agreeing, I guess, that the Court stated correct First Amendment law), your posting (a) embraces the Task Force approach; (b) declares that "attorney advertising SHOULD be done in a manner that is dignified and balanced, enabling the consumer to make informed decisions about securing quality legal representation.”; and (c) bemoans the fact that “Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster.”
So, we have a powerful bar association reluctantly agreeing that the State cannot ban content that is neither false nor misleading, but giving clear signals that ads "should" be relevant and dignified to be ethical. At best, this is a mixed message. It suggests that non-decepetive ads that the Bar's "Dignity Police" have been complaining about for years (including the innocuous "Heavy Hitters" ads) are still deemed inappropriate, or somehow less than fully ethical, in the eyes of NYSBA, because they are not sufficiently relevant or dignified, and purportedly hurt the reputation of the Bar.
Finally, I think you are being a bit too dismissive of consumers who use ads to assist in choosing a lawyer. As I discuss here , many average consumers have no family lawyer to ask for a recommendation and have no way to judge how trustworthy a friend's recommendation may be, or how objective a lawyer's referral may be. Also, for the reasons stated here, Lawyer Referral Programs are only slightly better, in many instances, than using the Lawyers by Practice Area section of the Yellow Pages.
Posted by David Giacalone | August 21, 2007 7:35 PM
Posted on August 21, 2007 19:35
Good morning. I updated my posting about "Lawyer Advertising II" to discuss your Comment, including the rebuttal Comment that I left here last night. My update concludes:
We have not discussed antitrust aspects of the Association's Guidelines and policy statements, but I believe it is risky for NYSBA to operate under the impression that any activity less than actual enforcement sanctions against a lawyer who uses disfavored ad content would be immune from antitrust challenge.
Posted by David Giacalone | August 22, 2007 8:57 AM
Posted on August 22, 2007 08:57
Sure, there are debt settlement law firms out there, and
some of them are very good at what they do. However, some of these firms
charge 25% or more of the enrolled debt. Many, if not most, consumers
simply canТt afford to pay fees of this magnitude. Also, being an
attorney in one state does not offer any special protection to a
consumer in another state where that attorney is not licensed. ItТs
simply not necessary to hire an attorney to settle your debts. Most
consumers can handle it on their own with a little training and
coaching.
attorney debt lawyer negotiation settlement
Posted by debtsettlement | February 4, 2008 8:49 AM
Posted on February 4, 2008 08:49