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New York’s Academy of Trial Lawyers says the proposed tough new rules on attorney advertising are welcome and overdue. In fact, the 500-member group contends, if anything they do not go far enough. “We need to take back the profession and restore some dignity so people respect and understand the causes that we stand for and realize that they are legitimate, appropriate and meritorious,” said the group’s president, Robert E. Lahm of Syracuse. The trial lawyers academy is the first major bar to comment publicly about the proposed rules announced last month. Next month, the New York State Trial Lawyers Association plans to hold a symposium in New York City on the rules. The New York State Bar Association is also expected to announce its position well before the Sept. 15 deadline. Bernice K. Leber, who chairs a state bar task force on attorney advertising, said she has asked local bars and other groups to forward their thoughts to her panel by July 24. Leber, of Arent Fox in Manhattan, said the task force will examine the proposal of the four presiding justices of the appellate divisions and consider the comments of the local bars before making a formal response. “We intend to do this quickly, though, in hopes of opening a dialogue,” Leber said. Last month, the presiding justices agreed on sweeping reforms to the disciplinary rules as they relate to attorney advertising. The proposed rules, which are expected to take effect Nov. 1, impose new time, place and manner restrictions on lawyer solicitations. They are so broad and cover so many areas — from solicitations of mass tort victims to the use of fictionalizations and dramatizations in ads — that the presiding justices took the unusual step of ordering a 90-day comment period. The trial lawyers academy generally supports the proposal but contends that some of the “most egregious behavior” should be addressed legislatively rather than administratively. According to its report, “money is the root of the problem,” and for some unscrupulous attorneys there is more to be gained and less to be lost by ignoring existing disciplinary rules. “The current rules and system have the effect of rewarding lawyers who engage in prohibited activities,” the academy said. “For some lawyers, the issue has become a simple matter of ‘risk versus reward.’ The amount of money a lawyer can make by attracting clients through improper solicitation and advertising is potentially substantial, and serious penalties for engaging in such prohibited activities are so rarely imposed that some lawyers yield to the temptation.” Tougher sanctions Concluding that “disciplinary rules alone have not proven to be a sufficient deterrent,” the academy would impose professional and even criminal sanctions on attorneys who: employ “runners” or “chasers” to drum up business; solicit clients through live telephone, real-time electronic or in-person contact; or solicit business from a person the attorney knows or should have known is already represented. “In addition to imposing criminal penalties, legislation should also make any contract for personal services secured by an attorney or law firm in violation of any of the [new rules] void and the lawyer or law firm would forfeit to the party injured double damages, to be recovered in a civil action or pursuant to the sentence imposed by a criminal court and should result in the permanent disbarment of the attorney,” the academy said. Further, the academy proposes a voluntary certification program for noncommercial civil trial attorneys. To obtain certification, attorneys would have to complete twice the amount of continuing legal education now required, promise to abide by a higher standard of ethics and agree to refuse referrals from lawyers who violate those standards and advertising restrictions. The academy would require noncertified attorneys to add a disclaimer in their advertising to inform consumers that New York state has a “certified civil trial attorney” speciality and that they are not among those certified. “The Academy believes that certification will provide the public with an important and meaningful standard to be used when selecting legal representation and should also serve to significantly reduce the clamor to ‘reform’ the civil justice system,” the organization said in its report. Lahm said the “time has come” for drastic action. “I am personally very happy with the changes [proposed by Presiding Justices John T. Buckley, A. Gail Prudenti, Anthony V. Cardona and Eugene F. Pigott Jr.],” Lahm said. “We are very pleased that there is an acknowledgment of the problem, and the efforts of the presiding justices are very welcome. But we would certainly suggest areas that should be tightened up to put some more teeth into it.” In January, the state bar called for court-monitored oversight to ensure that ads are honest, accurate and fair. However, it focused more on educational efforts than punitive enforcement.

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