New York Proposes to Define Lawyer Blogs as Advertising

As previously mentioned on this blog and elsewhere, New York is considering some major changes to its advertising rules, including an ill-advised attempt to impose restrictions on lawyers who attempt to contact accident victims within thirty days of an accident.  (Professor Freedman does a nice job of explaining why the rule would be such a bad idea in his comments to my earlier post.)  To make matters even worse, New York is now considering expanding its definition of advertising to encompass all "computer accessed communication," including blogs.  (You may recall that there was a similar attempt in Kentucky to define advertising this way.) 

Unfortunately, the history of bar associations is littered with attempts (like this one) to restrict lawyer advertising in the name of professionalism or the profession's public image.  (See pages 1001-1003 of this article that I wrote a few years ago.) But the reality is that lawyer advertising very rarely has the negative consequences that bar associations presume.  For example, former Chief Justice Warren Burger set up a Commission to sudy the effects of lawyer advertising on public opinon and found that "it is principally lawyers -- not clients -- who are concerned about the style and message of certain legal advertising."  Comm'n on Professionalism, A.B.A., "...In the Spirit of Public Service" A Blueprint for the Rekindling of Lawyer Professionalism (1986).

Since then, another ABA study reached a similar conclusion, finding that the relationship between advertising and public image is "questionable."  ABA Comm'n on Advertising, Lawyer Advertising at the Crossroads: Professional Policy Considerations 3 (1995).  Indeed, the Commission concluded that, "[w]hile the legal profession strongly believes that advertising contributes to the decline of the profession's image, the public rarely mentions advertising as a factor."

As with other advertising restrictions that bar associations have produced over the decades, New York's proposed regulations ultimately restrict lawyer speech without any clear evidence as to how those restrictions will benefit either the legal profession or the public.

Comments

[David Hricik]

It's an interesting issue. A bright line, though, I think would be wrong and unconstitutional. I don't think, for example, that this blog is an ad. But I know of some sites that "look like" news that are really designed to get lawyers business; therein lies the need for regulation, but therein also lies the definitional problem.

I can't believe they don't see the 1st Amendment issues here, though. Maybe this is how the lawyer advertising rules will fall.