A brief history of attorney advertising and current state in NY State. Presented at New York County Lawyers Association CLE in 2013,

1. MARKETING AND SOCIAL MEDIA TRENDS
FOR ATTORNEYS
Ron Idra, Esq. Bruce K. Segall
April 25, 2013

2. TOPIC 2
ATTORNEY ADVERTISING:
ONLINE / SOCIAL MEDIA PRACTICES
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3. 3
A BRIEF HISTORY OF ATTORNEY ADVERTISING
1908 1977 1983-5 1995 2005 2010
1800’s - Relative
Freedom
Restrictive
Period
ABA Model
Rules and
additional
rulings
Very restrictive
rules overturned
in New York
Bates vs. State
of Arizona -
Immediate
aftermath
Internet is
born
Birth of
social media

4. 4
ATTORNEY ADVERTISING HISTORY
 Relative de facto freedom, with
debate starting in 1850’s
 1908 – ABA first code – Canon of
Ethics
 In practice, some advertising
continued and rules loosened
Relative
Freedom
(1800’s)
Restrictive
Period (1908-
1977)

5. 5
ATTORNEY ADVERTISING HISTORY (CONT)
 1970’s environment – Consumer
groups and government attacks
 Recent law grads with a legal clinic
believe they need advertising
 Arizona Supreme Court ruling
 Supreme Court upheld advertising
- under First Amendment
- stronger than counterclaims
- right to advertise prices for services
 States still had right to regulate
advertising
Bates vs. State
of Arizona

6. 6
ATTORNEY ADVERTISING HISTORY (CONT)
Opening of “floodgates”
vs.
Narrow interpretation left open questions
 Predictable amount of brash advertising for
personal legal services
 But most, even for personal legal services, has
been unremarkable
By 1978:
 ABA approves TV advertising
 DOJ drops lawsuit
After
Bates vs. State
of Arizona

7. 7
ATTORNEY ADVERTISING HISTORY (CONT)
1983:
Model Code of Professional
Responsibility
Model Rules of Professional
Conduct
1985:
Lawyer dignity can not be regulated
per Supreme Court
ABA focuses on 10 aspirational
1980’s - ABA
Model Rules

8. 8
ATTORNEY ADVERTISING HISTORY (CONT)
 Internet is born
 2002 Amendment to Model
Rules.
 allow referral groups
 mail sent to those in need of legal
services to be labeled as
"Advertising Material" on the
outside of the envelope.
1990’s - Early
2000’s

9. 9
RECENT DEVELOPMENTS IN NY STATE
2005 2007 2010 2010
NYSBA Task
Force on
Attorney
Advertising
Report
New York Rules of
Professional
Conduct
Amended
New York Rules
of Professional
Conduct
Amended
Alexander vs.
Cahill – Courts
Rule Mainly
Against New
Rules

10. 10
ATTORNEY ADVERTISING HISTORY (CONT)
 Identified key issues with current
advertising:
1. False or misleading advertisements
2. Addressing emerging media
3. Jurisdictional and enforcement issues
4. Waiting period prior to personal injury
advertising
 Made four recommendations
1. Changes to Code of Professional
Responsibility
2. Adopt official advertising guidelines and
policy of bar
3. Attorney Advertising Disclaimers
4. Greater enforcement of Advertising rules
NYSBA Task
Force on
Attorney
Advertising

11. 11
ATTORNEY ADVERTISING HISTORY (CONT)
 March 2 – Changes to
Advertising Rules published
 July 23rd - James Alexander,
Alexander & Catalano
challenged rules on First
Amendment grounds
 Using slogan “The Heavy Hitters”
2007
Developments

12. 12
ATTORNEY ADVERTISING HISTORY (CONT)
Alexander Vs.
Cahill – Courts
Rule Mainly
Against New
Rules
March 2010 US Court of Appeals decision on:
 Content-based advertising restrictions
 Client testimonials
 Portrayal of judges or fictitious law firms
 Attention-getting techniques
 Trade or nick names that imply results
 30-day moratorium in targeted communications
regarding personal injury
Court of Appeals
- upheld lower court’s rejection of content based
advertising restrictions
- With the exception of fictitious law firm names
- upheld lower court’s upholding of 30 day
moratorium

13. 13
ATTORNEY ADVERTISING HISTORY (CONT)
 Distinction between
“misleading” and “potentially
misleading”
 Useful Reference -Report of the
Committee on Standards of Attorney
Conduct and the Task Force on Lawyer
Advertising on Changes to the New York
Rules of Professional Conduct in Light
of Alexander v. Cahill”
 Extensive Disclosure
requirements remain
New York Rules
of Professional
Conduct
Amended 2010

14. 14
ATTORNEY ADVERTISING HISTORY (CONT)
Current State
Attorney advertising has an enigmatic
element
Values that act as opposing “pulls”
Even post-2010 ruling, New York generally regarded as
more highly regulated than other states
“Professionalism” Access & Freedom of
Trade
Small Community Mass, urban society
Personal legal services Corporate law

15. 15
CONCLUSION: ATTORNEY ADVERTISING KEY TIPS
 New York Rules of Professional Conduct pp. 163 – 167 is an excellent summary
 Labeling any marketing-related email as “Attorney Advertising” in the subject line
may seem onerous. However, many exceptions exist:
 Current clients (interpreted “more broadly” than “for purposes of conflict of
interest analysis”)
 Former clients
 Certain newsletters and client alerts
 The “primary purpose is general awareness and branding, rather than the
retention of the law firm for a particular matter”
 Participation in an educational program
 Solicitation as a subset of advertising
 No solicitation “by in-person or telephone contact or by real-time or
interactive computer-accesses communication” e.g. pop-up ad “unless the
recipient is a close friend, relative, former client or client.”
 Filing of solicitation as directed on pp. 175-6 of New York Rules
 Use of domain names that do not include name of lawyer or law firm are
permitted under certain circumstances (p.183)

16. QUESTIONS? CONTACT US
Bruce K. Segall
President
Marketing Sense for Business
bruce.segall@gmail.com
(914) 980-4703
www.marketingsense2.com
www.linkedin.com/in/brucesegall
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