Proposed Advertising Rules in New York

New York is considering some rather dramatic new restrictions on lawyer advertising, including a provision that appears to be like the oft-criticized 30 day moratorium rule in Florida that the United States Supreme Court upheld a few years ago.  You can find more details here.  There is also a helpful story in the New York Law Journal here, but it's subscriber access only.

Comments

[Monroe Freedman]

The following is excerpted from Freedman & Smith, Understanding Lawyers' Ethics, Ch. 12 ("The Professional Responsibility to Chase Ambulances") (3d ed., 2004). It deals with Florida Bar v. Went for It, approving a 30-day rule.
Justice Anthony Kennedy dissented, joined by Justices Stevens, Souter, and Ginsburg. Kennedy pointed out (and the majority did not disagree) that “when an accident results in death or injury, it is often urgent at once to investigate the occurrence, identify witnesses, and preserve evidence.” Accordingly, the banned communications may be “vital to the recipients’ right to petition the courts for redress of grievance” under the First Amendment.
Unfortunately, what may have been the most effective argument before this Supreme Court was not made in Went For It. Kennedy mentioned in his opinion that while plaintiffs’ personal injury lawyers were barred from contacting victims or their survivors, there is no similar ban against potential defendants, their lawyers, and their adjusters. This, he said, “makes little sense.” Actually, this discriminatory treatment between the two adverse sides is more serious than that, and the constitutional authority for striking it down is significant.
Just as there is anecdotal evidence that some people resent the intrusion of a plaintiffs’ lawyer on their privacy, there is evidence that people similarly resent intrusion by insurance adjusters. One source for this is the Wall Street Journal (not a friend to plaintiffs’ lawyers). For example, an adjuster for Liberty Mutual Group knocked on the door of the family of a New Jersey woman just thirteen hours after she had been killed in a wreck to discourage them from getting a lawyer and to propose settlement with a waiver of their rights. The insurer defended the practice as a benefit to those solicited. In another case, this one from Florida, a woman briefly considered dealing directly with an adjuster but “became suspicious” after the claims representative repeatedly stressed that a lawyer wasn’t necessary.
Clearly, this is a controversy of public importance–whether an accident victim should retain a lawyer to assert her First Amendment right of petition, and whether a particular settlement is in the interest of a particular victim. Just as clearly, one side of that controversy is being permitted to speak, while the other is being gagged. This is “viewpoint discrimination,” which was declared unconstitutional in R.A.V. v. City of St. Paul just three years before Went For It. The opinion in R.A.V. was written for the Court by Justice Scalia, who was in the 5-4 majority in Went For It. In this analysis of Went For It, the regulation would be constitutional as long as both sides were barred from speaking during the thirty-day period. This still would give an advantage to the insurer in most cases, because it is the victim who has the burden of proof and who urgently needs to find witnesses and to gather physical evidence before it has been lost or destroyed. Nevertheless, such a balanced rule would be a significant improvement and would avoid the constitutional concerns of R.A.V.

[Andrew Perlman]

I could not agree more with Professor Freedman. I was going to write something about how bad the 30 day rule is, but Professor Freedman has beaten me to the punch and said it better than I would have.