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If your firm has been thanking its lucky stars that it is located in Pennsylvania – far removed from New York state’s recently passed ethics in advertising rules – you may have to think again. Especially in the area of online marketing – which includes firm Web sites and blogs – many firms would be well-advised to attempt to comply with New York’s guidelines, Assistant Executive Director of the Philadelphia Bar Association Paul Kazaras told the Delaware Valley Law Firm Marketing Group last week. Kazaras said because the online environment doesn’t respect geography, if a firm has any hope or expectation of getting business outside the state – and most firms do – it’s smart to be in compliance with the strictest rules around. And because new rules in states such as New York have yet to be fully defined by the courts, firms that have an office or expect to work in those states should attempt to comply early, he said. “Nobody wants to be the test case,” Kazaras said. The much-publicized New York rules went into effect Feb. 1. They are considered among the toughest with which to comply, according to Kazaras. He said Florida was also a state with strict advertising guidelines. Closer to Home Though Kazaras said Pennsylvania’s rules are comparatively lax, some changes could be afoot in the commonwealth as well. On Friday, the Pennsylvania Bar Association House of Delegates passed the report by its task force on lawyer advertising, according to Thomas G. Wilkinson, the task force’s rules subcommittee chairman. Wilkinson, of Cozen O’Connor, said the report was a starting point for discussion on changes to ethics rules in Pennsylvania. “[The report] was designed to get a dialogue going with the [Pennsylvania] Supreme Court on additional measures undertaken to review problem advertising and also to encourage quality and nonmisleading advertising,” Wilkinson said. He said the task force’s major recommendation was that the state Supreme Court establish a mechanism for review of certain types of advertising through a submission or random audit requirement. Those reviews would be after the publication of the advertising, not before, Wilkinson said. Television advertising and direct mail would be the focus of such review, according to Wilkinson. The task force recommended that “routine” print ads, the content of which was rarely objectionable, be exempt, he said. The task force considered all of the rules adopted by New York’s appellate courts, but didn’t incorporate all of them in its recommendations, according to Wilkinson. “We think the [Pennsylvania] recommendations are conservative and achievable without the likelihood of a serious commercial speech challenge,” Wilkinson said. Compliance Though small and midsized firms – especially consumer-based class action and personal injury firms – may seem likely to be most vulnerable to ethics violations because of their potentially smaller staffs to handle compliance issues, Kazaras said that’s not always the case. He said firms of any kind, from a small plaintiffs firm to an international boutique, run risks depending on where they practice and with whom. And, Kazaras said, legal malpractice is the biggest area of growing litigation. “What you consider innocuous may be used in a malpractice action,” Kazaras told the group of about 30 legal marketers. But if your firm finds it dizzying to decide which states’ advertising rules to follow and to what degree, you aren’t the only one. “[Ethics rules are] a maze and there are a lot of places you can get caught,” Kazaras said. To be safe, Kazaras said he recommended that firms look at the rules in each state where they are licensed or looking for clients, and examine the standards. But Kazaras said each firm had to find a balance between protecting itself and advertising its services. “I would hate to see a tasteful, good, professional Web site for a Pennsylvania firm – that is looking for cases in Pennsylvania with a statewide practice – comply with New York’s rules,” Kazaras told The Legal yesterday, because he thought it could be overly burdensome. Jason Lisi of Legal Internet Solutions – a Web site design company specializing in law firm sites – said he was surprised at the potential liability of a practitioner in Pennsylvania to codes of ethics in states that the practitioner was not barred or practicing. “I think it’s somewhat unfair to be subject to jurisdictional rules where you don’t pay to be in that state’s bar and actively practice there. I think there has to be lot more definition of these rules,” Lisi said. Until then, Lisi said he would be advising his clients of the potential liability of their Web sites. Lisi said his clients who had offices in New York had altered their Web sites in accordance with the rules, but few Pennsylvania firms had brought up the issue with him. “I can definitely see why [law firms] aren’t entirely on top of these things,” Lisi said. “They have to be on top of their own practice, plus keeping up to date on the [varying] ethical standards for their practice could be tough.” New York Specifics Though firms should examine the guidelines themselves and decide what, if any steps, to take, Kazaras pointed out some areas of the New York rules that firms should consider. The New York rules clearly state that Web sites constitute advertising – and require firm homepages to be labeled as such, he said. Firms should also look at any “soft” endorsements on their Web sites, Kazaras said. An example of a “soft” endorsement might be saying that the firm negotiated a $20 million settlement between an injured worker and his regional transportation company employer. But even if the firm thinks these endorsements don’t identify the parties involved, they may, he said, and may also run afoul of confidentiality agreements. Another issue to consider, he said, is record keeping. The New York rules stipulate that any advertisements “contained in a computer-accessed communication” must be retained for a year. Kazaras said it seemed to him that this indicated firms must keep copies of every change to their Web sites. But he said it was not yet clear to him if that meant the records must be on paper or electronic. Record retention, like many aspects of the new rules, is up for definition by the courts, he said.

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