Rotten to the Core

For all the hand-wringing and perseveration around the new New York bar rules, we’re not reaching for the defibrillator paddles yet. In the main, we don’t see much of a problem for our clients beyond discreet, ugly notices. The rules, we all know, are designed for the plaintiff’s bar. Read from that point of view, the rules are pretty clear. Read from the point of view of corporate firms, the rules are vague in spite of their apparent specificity. All in all, they are annoying for corporate law firms caught in the tuna net designed for plaintiff’s firms. This is an issue corporate lawyers have thus far been unwilling to address head on. For such tough guys and gals, we are disappointed in your lack of courage or, worse in this day and age, lack of interest.

[Continue reading for more analysis and click here to download our chart that summarizes what you need to know about these new rules.]

Meanwhile
The new New York rules are, we believe, unconstitutional and anti-competitive and already in the throes of court challenges. As the first lawsuit by Public Citizen states, the rules “allow for arbitrary and discriminatory enforcement (Boy, do they ever!) and impose onerous restrictions on both commercial and noncommercial speech that the state has no legitimate interest in regulating.”

The rules fly in the face of California’s latest, more reasonable rules that follow the ABA model (Is it any wonder that California is on the left coast and New York is on the right?). One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.

What’s the status of the rules?
An initial comment period ended with the new year. Many unreasonable restrictions have been replaced by more reasonable ones, but there are still new requirements and prohibitions. Another comment period is in play from January through March 2007, at which point they will become “permanent” unless overturned by court challenges.

Who should care?
Technically, any lawyer or law firm (1) with an office in New York, (2) with clients in New York or (3) seeking clients in New York, more or less in that order. Practically, there seems to be little reason for anyone to break into a sweat because New York City has no disciplinary apparatus in effect or planned to go into effect. Apparently, all the bluster is going to occur around Syracuse and Buffalo, NY. So hang onto your hats, Hodgson Russ and friends. Nevertheless, the rules are so full of holes that, aside from placing a couple of notices on some materials (see chart attached), we recommend doing absolutely nothing. But it’s your business and you must make your own decisions (see disclaimer at the end).

What do the rules cover?
Pretty much everything dealing with marketing and sales. “Advertising” includes everything from business cards to Web sites.

What do these rules mean for great advertising?
For the most part, great professional service advertisements (whether display ads, Web sites or brochures) don’t violate these rules, because they don’t make unsupportable claims. Actually, great ads don’t make any claims at all—either of results or qualifications. Plus they promise nothing false or misleading. Great ads create a personality, an attitude about the firm that doesn’t run afoul of any of these rules.

What do these rules mean for creativity?
See the attached chart for a guide. According to the convoluted outline of the rules, you may claim that you rule the world “if it can be factually supported by the lawyer or law firm as of the date which the advertisement is published or disseminated” and has the disclaimer, “Prior results do not guarantee a similar outcome” and it contains the notice, “Attorney Advertising.” In other words, “Our firm is ranked #3 in private equity transactions on the planet” is perfectly acceptable with the appropriate disclaimers. You can handle that. So can we. It simply needs to be readable by the “average person.” That’s me, isn’t it? You?

What do these rules mean for marketing partners?
Roll up your carpet and go home? Not really. A close reading of the rules reminds you once again that this bunch of rules is directed at plaintiff’s lawyers. For example, they countenance no “coercion, duress or harassment.” How many corporate counsel have been tracked down in their living room, wife/husband sobbing at their side, and forced to sign an engagement letter?

What do these rules mean for ethics officers?
How in the world did you get this thankless job? You should resign. Seriously. You cannot be right. You can only be safe. If you are really, really safe, you will simply decline to allow your firm to do a thing until someone else does something and is chastised for it (because you will never hear the praise). Ironically, courage is required in the representation of clients at the bar but not of your own “clients” at the firm. Fight these rules in favor of the ABA model rules.

What do these rules mean for marketing directors and staff?
Until someone tells you different, I would simply relax. It will take years to clarify the implication of these rules, if ever. By then, court challenges may have successfully overturned them. Modest changes, such as notices, seem to be in order. But you can legitimately claim to be confused. And so can your ethics officer. Can any corporate firm be seriously disciplined for “advertising” that is not false or misleading and “advertising” that is tasteful until further clarification arrives? Public Citizen goes even further in their suit, arguing that the rules attempt to regulate speech based on taste, which is not sufficient to restrict commercial speech.

What do these rules mean for nervous Nellies?
In Florida, honestly, anyone who submits their ads to the Florida Bar formally for approval only does so because they are on the Ethics Advertising Review Committee for the state bar. (Don’t lobby for that job.) Others wait for cranky competitors to submit their ads for review. But, if you must, preview your ads with John Remsen in Florida (who sits on said committee) to become aware of the potential problems.

As for New York, we recommend you lay low. If you positively, absolutely wish to be safe, stop marketing altogether because you can be certain that everything you do can be challenged by some tortured reading of these rules.

What does this mean for the enforcers?
Misery. A good deal gone bad. The unintended consequences of these regulations should keep you busy reviewing material that you never expected nor wanted to see. But, of course, you will have to weigh in with all the seriousness of purpose that is expected of you as responsible members of your station. Thus, you’ll toss out the baby with the bathwater. But as you intone the high principles that you are sustaining, you must wonder if that time wouldn’t be better spent on justice. Isn’t that the reason you took up the calling in the first place?

Disclaimer
This is an opinion piece, not legal advice, lest anyone be confused. But guess what? Every comment on the subject is nothing more than an opinion piece. We called and asked, “If our ads only appear in legal publications, must we apply any of these rules?” Answer: “Good question. I don’t know.” In other words, if the rulemakers and enforcers don’t know, then no one really knows.

Click here to download our chart that summarizes what you need to know about these new rules.