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When the four presiding justices formulated exceptionally broad ethics rules on attorney advertising last spring, they took the unusual step of delaying implementation of the proposed restrictions because they figured such sweeping new limits might generate some comment. Boy, were they right. The initial 90-day comment period, which ended Sept. 15, has been extended two months, and the justices are getting an earful as they inch toward adopting standards that are now slated to take effect in mid-January. Several bar groups and individual lawyers have already weighed in, and although their comments are not yet finalized or public they do suggest at least two things — that while attorneys and bar organizations generally agree that something must be done about over-the-top solicitations, there remains considerable disagreement over just what that something should be, according to Chief Administrative Judge Jonathan Lippman. “My view of it in general is there is consensus that it is a good idea to be further regulating this area, and focusing on any possible abuses, and in modernizing the rules,” Judge Lippman said. “But it is also fair to say that across the board there is interest in all the different provisions — everything from the content limitations in the ads to regulation of the Internet to the logistics to the practicalities. This is a very serious issue to the profession, the presiding justices, the chief judge and myself. And we want to hear all of it.” The proposed rules, which are posted at www.nycourts.gov/rules/proposedamendments.shtml, are nothing if not expansive. They address solicitations to mass tort and disaster clients, pop-up Internet ads, celebrity voice-overs and fictionalizations. They would add a plethora of filing requirements, so watchdogs could monitor the type of advertisements that are employed. And the new rules even attempt to rope in out-of-state attorneys who advertise in New York. Overall, they generally parallel a series of recommendations by a New York State Bar Association task force chaired by Bernice K. Leber of Arent Fox in Manhattan. However, while the state bar’s focus was largely educational, the presiding justices would put considerable bite in the new limitations by giving them the full force of a disciplinary mandate. Bar groups are seemingly divided over whether the restrictions go too far or not far enough, whether they are too general or too specific and, ultimately, whether they are even constitutional. “A lot of groups are lobbying the presiding justices,” said one bar leader. “Everybody is complaining about the overbroad definition of advertising. Under these rules, if you write an article for the Law Journal it could be considered advertising. And the big firms are complaining because their Web sites are deemed advertising.” A newly formed organization of attorneys who advertise, New Yorkers for Free Speech, has retained First Amendment expert Floyd Abrams of Cahill Gordon & Reindel to make their pitch. Free speech concerns In a recent letter to the Office of Court Administration, Abrams argues that the “new rules sweep well beyond protecting the public against false, deceptive or misleading speech and in so doing, they betray the hostility to lawyer advertising that is at the heart of this proposal.” Abrams, in his letter, suggests that the proposed restrictions are “rooted in disdain, if not contempt, for the very notion of lawyer advertising” and the 1977 U.S. Supreme Court precedent recognizing attorneys’ First Amendment right to advertise (Bates v. State Bar, 433 U.S. 350). He contends that existing rules, which are “routinely unenforced due to the lack of resources available to departmental disciplinary committees, appropriately define limits for attorney advertising.” Abrams wrote in behalf of New Yorkers for Free Speech, which was recently founded specifically in response to the proposed new rules by personal injury attorneys Andrew Finkelstein of Finkelstein & Partners in Newburgh and Jeffrey Lichtman of Trolman, Glaser & Lichtman. Both have been active with the New York State Trial Lawyers Association and Lichtman is a former president. Meanwhile, the Federal Trade Commission also has weighed in. In a Sept. 14 letter to the Office of Court Administration, three top officials at the commission maintained that the proposed restrictions are “overly broad, may restrict truthful advertising and may adversely affect prices paid and services received by consumers.” The letter was signed by Maureen K. Ohlausen, director of the Office of Policy Planning, Lydia B. Parnes, director of the Bureau of Consumer Protection, and Michael A. Salinger, director of the Bureau of Economics. They took particular exception to rules that they said are geared more toward the “style and content of media advertising” than in rooting out deception, such as: • A prohibition on voice-overs, images of non-attorney spokespersons who are publicly recognizable, depictions of courthouses or courtrooms, portrayals of judges or lawyers by non-attorneys and re-enactments of scenes or events. “These methods are unlikely to hoodwink unsuspecting consumers because consumers are usually familiar with them,” the FTC officials said. “Any concern that the actors may be more poised or otherwise materially preferable to actual attorneys could be addressed through a less restrictive approach of requiring clear and prominent disclosure that the lawyers are portrayed by actors.” • A ban on testimonials, endorsements from existing clients and paid endorsements. The FTC would require disclosures rather than ban such advertising techniques outright. • A requirement that attorneys and law firms file their advertisements and solicitations with a disciplinary committee for public view and scrutiny. The federal agency is concerned that would increase the cost of doing business for attorneys and result in higher costs for legal consumers. • Restrictions on the use of online solicitations. Under the proposed amendments, New York attorneys would be barred from initiating a solicitation “by real time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or current client.” The FTC said the restriction is unnecessarily broad. “Rules that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in New York state,” according to Ohlhausen, Parnes and Salinger. Support for sanctions At the other end of the spectrum, the Academy of Trial Lawyers is looking for tougher standards and stricter enforcement, perhaps even criminal sanctions for lawyers who use brokers and runners to drum up business, and double damages for clients who are compromised by end-run solicitations. “This is a beginning toward restoring public confidence and we certainly applaud their efforts in trying to reign in advertising and unethical solicitations,” said Robert E. Lahm of Syracuse, president of the group. But the academy opposes the new rules as now written, arguing that the enforcement provisions need to be tighter, the filing requirements need to be more reasonable and the rules in general need to be much more specific. It would establish a recognized but voluntary certification program for non-commercial civil trial attorneys. “We are not trying to make this an exclusive club,” Lahm said. “Anyone who wants to take the time and take additional [continuing legal education] and abide by a higher standard of ethics, and agree to limitations on advertising, and to not take cases from lawyers who violate the standards, would be eligible. It is not an insurmountable bar.” The academy spun off from the New York State Trial Lawyers Association, which was viewed as more tolerant of attorney advertising, a few years ago. Part of the academy’s core mission is to restrict what it views as unseemly or unethical advertising. Modifications sought The Trial Lawyers Association held a symposium on the issue over the summer and will release its report and recommendation later this month, according to executive director Daniel Feldman. Additionally, the New York City Bar Association is completing its report and will comment publicly when it is finalized, according to its president, Barry Kamins of Brooklyn. New York State Bar Association President Mark H. Alcott of Paul, Weiss, Rifkind, Wharton & Garrison said the state’s largest bar group submitted its comments to the presiding justices. Alcott said he is now meeting individually with the presiding justices to “explain our comments and have a give and take process.” “We are pleased that something is being done, but we think some of these proposed changes have to be modified,” Alcott said. “They are listening to the profession, and I think they are listening with an open mind.” Alcott said the state bar agrees with the anti-solicitation provisions and the “cooling off period” that would bar solicitations in the immediate wake of a disaster, but only if potential defendants and insurance companies are also barred from approaching prospective plaintiffs during that period. Additionally, Alcott said the state bar would not define as “advertising” a lawyer-to-lawyer communication in which one expresses expertise in a particular area and asks the other to keep him or her in mind for referrals. Further, the state bar would prefer regional enforcement through a departmental advertising commission over policing by the disciplinary committees, as is now proposed. “It really shouldn’t be left to the ethics committees because then only the most egregious, willful violations will be addressed and routine policing functions will not be carried out,” Alcott said. “We think that most of the transgressions will be minor and in good faith.” Abrams, in an interview, said the proposed restrictions are uniquely broad and “deeply hostile to the very notion of attorney advertising being protected by the First Amendment.” He added, “Certainly this would make New York amongst the strictest and probably the strictest, most anti-attorney advertising state in the country. When you put all these provisions together, I think New York would be probably the least protective state for lawyer advertising in the country.” Judge Lippman said the administrative board of the courts, which consists of the chief judge and the four presiding justices, would be discussing the issue at its next meeting late this month. He said the fact that the presiding justices delayed implementation of an ethics rule to garner comment indicates that they are well aware of the potential impact of their proposal.

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