Or a hell of a lot of them — and I don’t mind saying, quite a few of the best ones. It could mean the end of Likelihood of Confusion. Not the doctrine, but the blog. My blog. And pretty much all my email. Well, not so fast. But if the public keepers of morality and lawyerly dignity have their way, absolutely. Public Citizen’s CL&P (Consumer Law and Policy) Blog wrote last month that New York is considering draconian advertising rules that would essentially make it impossible for lawyers to maintain blogs. I am excerpting liberally, but urge you to follow the link and the discussion at the CL&P Blog:
Stripped to their essence, the proposed amendments would define the term “advertisement” extremely broadly as any public communication made “by . . . a lawyer . . . about a lawyer.” Sec. 1200.1(k). This definition explicitly includes all forms of communication on the Internet, including websites, email, and instant messaging. Sec. 1200.1(m). There is no requirement that the speech be commercial in nature or related to the lawyer’s practice of law.
Because this blog contains information about its contributing attorneys, it would fall squarely within the proposed rule’s definition of advertising. If this blog were located in New York, contributing attorneys would therefore be required by the proposed rules to print a hard copy of the blog every time it is modified. Sec. 1200.6(n). They would then have to store the printout for a period of at least a year, and send an additional copy to the New York attorney disciplinary committee for its records. Sec. 1200.6(n) & (o)(iii). The rules would also require the blog to be branded with the words “Attorney Advertising” and include the names, office addresses, telephone numbers, and lists of licensing jurisdictions of participating attorneys. Sec. 1200.6(h), (j) & (k). Because the blog does not contain the full name of a lawyer or law firm in its URL, the page would need to list the names of participating attorneys in a font at least as large as the largest font on the page (in this case, the names would need to be in at least a 60-point font to match the large banner title). Sec. 1200.7(e)(1). Furthermore, although it surely could not have been intended to reach this broadly, the rule appears to subject any links from a website to these onerous restrictions. Sec. 1200.1(m).
The same rules would also apply to email sent by lawyers to public listservs, and even to private email if it “concern[s] the availability for professional employment of a lawyer or law firm.†Sec. 1200.1(l). Unlike web pages, however, email would have to be saved for a period of three years. Sec. 1200.6(n).
Finally, the proposed rules would impose a litany of other restrictions on attorney advertising that will primarily impact television advertisements, including prohibitions on the use of actors to portray judges, lawyers, or clients; the reenactment of events; and the use of celebrity endorsements. Sec. 1200.6(d). Most of these restrictions would not affect this blog, although, depending on how one reads the language, the picture of the Supreme Court’s facade at the top of the page would arguably run afoul of the restriction on “depict[ing] the use of a courtroom or courthouse.†Sec. 1200.6(d)(6).
Like many state restrictions on attorney advertising, New York’s proposed amendments appear to be intended less to prevent consumer misunderstanding than to prohibit the most effective forms of lawyer advertising. The burdens imposed on attorneys under these rules would be overwhelming and unworkable, would generate untold amounts of useless paperwork both for the attorney and the state disciplinary commission, and would totally undermine the potential of the Internet as a medium for cheap and efficient means of mass communication.
Only the proponents of these new regulations could possibly find a way to get Ron Coleman and Public Citizen to agree so completely. Idiotic, to say the least. Hat Tip to the blog with the British version of my blog’s name, Moron in a Hurry.
You can comment on the proposed rules by writing to:
Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004
by November 15, 2006. I encourage it.
{ 12 comments }
This is absolutely, completely backwards.
I’m sorry to have to tell you, Ron, that I’m generally against attorney advertising. Not as a matter of law, but as a custom. Back in the day, of course, there was a ban. I don’t remember if it was a law or just a bar association rule, but attorneys only advertised in relatively staid ways like Yellow Pages ads. And when that changed, I think it enabled way too many ambulance chasers of the 1-800-SUE-THEM variety. So I miss those days.
But the sort of “attorney advertising” I absolutely, wholeheartedly approve of is public communications: speeches to community groups, articles in magazines and newspapers, and yes, blogs. Not only do these provide a valuable education service, but they help us to get to know how the attorney thinks and operates. You’d better believe that when I run into an IP issue (soon, I hope), I’m going to be contacting you to learn your rates, because you’re the smartest IP lawyer I know.
And I also suspect it works against the ambulance chasers, because they’re not smart enough to do it well.
I’m not happy with a ban that’s a law, either way; but if the ban only stopped the 1-800-SUE-THEM type ads, I wouldn’t be upset enough to care. A law that affects blogs is just wrong.
I’m going to read more. Maybe there’s something I’m missing here, but I don’t like what I’ve seen so far.
There are a lot of things that are crass and tasteless and even ethically questionable that are not and should not be illegal — I think you agree, Martin. Especially when free speech is implicated.
Thanks for the nice comments about how effectively I have duped you with the lawyer advertising that is my blog. In this case you happen to be right — I am the smartest IP (and commercial litigation) lawyer you know… and a little crass, too, maybe, for saying so!
Oops. That was a “lawyer advertisement.”
By the way, not only are you arguably better educated by knowing what a smart, great lawyer I am. I’d like to think you’re a little better educated because you are exposed to the analysis of issues I present on Likelihood of Confusion. These proposed regulations would put an end to that. And that’s supposed to benefit the consumer?
Keep reading, yes. And if you are moved, please write to Mr. Colodner.
C-c-c-c-c-cat fight!!!!
Lawyer on lawyer, baby!
You’re just hoping we’ll kiss.
Well, now that you mention it, yes I would like to see you kiss.
But only as a result of an arbitrated agreement.
Now THAT would be hot….
From the post:
If this blog were located in New York, contributing attorneys would therefore be required by the proposed rules to print a hard copy of the blog every time it is modified. Sec. 1200.6(n). They would then have to store the printout for a period of at least a year, and send an additional copy to the New York attorney disciplinary committee for its records.
Imagine it. A hard copy of every word, sent to the New York attorney disciplinary committee… I’d wager in less than 6 months they would be so overwhelmed with hard copy they would rescind the law. Who’s brainchild proposal was this? THAT’S the one to send all the hard copies to.
I’m all for stifling the ambulance chasers, for the record. Last October a cruise boat, the Ethan Allen, sank on our lake, killing 20 senior citizens. It was a horror to see, all those bodies lined up on the lakeshore waiting for hearses, all the survivors huddled under blankets trying not to look over where their friends, husbands, wives lay dead. Within half an hour of our arrival on scene there were several yuppie types in cheap suits handing out business cards to the dazed and hypothermic walking wounded. Even the media, which were swarming everywhere, weren’t that insensitive. The attorneys were finally identified and escorted out of the scene (with one threatening to “own this lake”) after one of them stuck his head behind a makeshift curtain where one elderly woman was trying to relieve herself in a plastic emesis basin from one of the ambulances. I think they should have a code of ethics that better defines “ethics”.
Linda
Out of curiosity do you happen to know what triggered the creation of this masterpiece?
Paperwork for every time the site changes? There’s forethought for you. If the person that drafted the amendment were the person in charge of going through all of that paperwork; I would almost find it humorous if it passes… almost. But, since this is not the case, it’s definitely a bad idea.
Illegal? No. But I still miss the old days. The 1-800-SUE-THEM crowd does a disservice to the image of lawyers everywhere.
I think Linda and JRogge are onto something. If this does pass, we should get you and every blog-writing attorney in the state a little utility code. This code would make a minor change to the site every hour — maybe a random “quote of the hour” feature — and then automatically send a hard copy order to Kinko’s, with delivery order to the disciplinary committee. Maybe when the mountains of paper get high enough, someone will realize how ludicrous this is.
jaymaster: you are one sick puppy…
Also, I wonder how much weight Mr. Colodner will give to a letter from some random guy from Michigan. I can’t vote for anyone in the state, after all.
“First, kill off all the lawyers.”
“I can’t let you do that, Dave.”
“Okay, then kill of their blogs.”
Or should I say…
First they came for the political speech, and I did nothing. Okay, well, I railed against it but McCain didn’t care.
Then they came for the lawyers…
Martin, blogs by New York lawyers — like mine, for instance — have an impact on the whole country. (In fact I get traffic from around the world.) They also raise the profile of the New York bar and tend to give more opportunities for New York lawyers. That’s of interest to Mr. Colodner and his committee, I would think.
Obviously there’s now a market for a hosting service that produces the necessary printouts automatically and stores and forwards them as required by the law.
I suggest blogging entirely in graphics (uncompressed 24-bit TIFF would be nice), then sending them hex dumps of those graphics.
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