New Advertising Rules Go Into Effect

By Anthony J. Gigliotti, Principal Counsel
Attorney Grievance Committee, Fifth Judicial District

A modified version of amendments to the Disciplinary Rules, related to advertising and solicitation, became effective on February 1, 2007. The new rules are available on the New York State Bar Association website or at the Office of Court Administration’s website.  Special attention should be given to the definitions of the terms: “advertisement," “computer-accessed communication” and “solicitation.”

“Solicitations” are defined as “any advertisement initiated by or on behalf of a lawyer... that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives...“ The final version of the new rules will require filing of a copy of the solicitation and the transcript of the audio portion of any radio or television solicitation, which is directed to, or targeted at, a specific recipient or group of recipients in this State. Web sites are excluded unless designed for, and directed to, or targeted at “a prospective client affected by an identifiable actual event or occurrence.” Not all “advertisements” are “solicitations”! However, when deciding what to file, the rule should be read carefully, and given the broadest possible interpretation.

Unsolicited communications to persons affected by an incident, involving claims for personal injury or wrongful death, cannot be made before the 30th day after the date of the incident, unless a filing must be made within the 30 days to preserve the victim’s rights, in which case a 15 day rule is applied. Such solicitations must also include a disclosure of how the lawyer obtained the identity of the recipient and learned of the recipient’s potential legal need.

The new prohibitions on the content of “advertisements” should also be carefully examined. Included in the “shall not” section of the rule are the uses of nicknames, monikers, motto or trade names that imply an ability to obtain results in a matter. Endorsements and testimonials from current clients are prohibited, as are paid testimonials without disclosing the fact of compensation. Advertisements may not contain the portrayals of judges, and the use of actors or fictionalized scenes without disclosure of same. Also prohibited are the use of techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence.

The foregoing are merely highlights of very detailed modifications to the Disciplinary Rules. If, after examining the full text of the new rules, you wish to seek an advisory opinion, you may call the OCBA’s Ethics Hotline, administered by Victor Hershdorfer, Esq., 422-6154.