Article

Here's the article that mentions me from Lawyers USA. It's subscription only, but I should have a link to it on my website soon. I bolded the one line that mentions me. Too bad he got the city wrong!:

New York weighs tough new lawyer advertising rules
By Dick Dahl Staff writer

Standing before images of fiery explosions or computer-animation car crashes, the wild-eyed Shapiro would jab his hands into the air and assure viewers that he would scorch the earth in his pursuit of wrongdoers.

"I cannot rip the hearts out of those who hurt you; I cannot hand you their severed heads," he said in one commercial. "But I can hunt them down and settle the score."

He ended his commercials with a further promise: "You call. I hammer."

Shapiro's commercials are no more - he was hit with a $1.9 million malpractice judgment by a jury that determined he never actually tried cases, but left all the work to paralegals. But they're an example of the kind of advertising that prompted four presiding justices of New York's appellate courts to propose new disciplinary rules designed to discourage any future Jim Shapiros.

Attorneys are sharply divided over the proposed changes. Some believe that the rules, which are scheduled to go into effect Nov. 1, will return decorum to the profession, while others contend that many of them are unconstitutional.

Lawyers have a chance to comment until Sept. 15, but unless the rules change significantly New York will have one of the strictest regimes for lawyer advertising. (See accompanying story for a detailed description of the changes.)

Although other states generally have less restrictive rules, a "get tough" approach to lawyer advertising is appearing in someother parts of the country as well.

For example, in September 2005 the Missouri Supreme Court adopted amendments to the state Rules of Professional Conduct that place greater restrictions on lawyer advertising, including a required disclaimer that states, "The choice of a lawyer is an important decision and should not be based solely on advertisements," and prohibitions on ads that suggest guaranteed good results.

In Florida, the state supreme court held last November that a law firm's use of images of pit bulls in spiked collars - and its toll-free phone number 1-800-PIT-BULL - was improper. (The Florida Bar v. Pape, 918 So.2d 240 (Fla. 2005).)

And on July 19, the New Jersey Supreme Court prohibited attorneys from mentioning "Super Lawyer" or "Best Lawyers in America" rankings in their advertisements.

Conflicting views

Back in 1977, the U.S. Supreme Court ruled that it was unconstitutional for states to prohibit lawyers from advertising. (Bates v. State Bar of Arizona, 433 US 350 (1977).

Since then, two distinct opposing factions have emerged. On one end are the old guard, who believe that any advertising demeans the profession. On the other are those who say that relatively unfettered lawyer advertising provides consumers with the information they need to make good choices.

The New York rules represent a victory for the old guard's position.

Michael S. Ross, a New York City lawyer who served on the bar association task force that drew up the first draft of the rules, said the effort was fueled in part by public pressure.

"There's been a lot of distaste for the way lawyers solicited clients after disasters, like the Staten Island Ferry disaster," which killed 11 people and injured 71 in October 2003, he said.

In addition, an increasing number of lawyers have been advertising on television. And some, like Shapiro, employ devices that traditionalists find troubling.

For example, the Albany, N.Y. personal-injury firm of Martin, Harding and Mazzotti has been running TV ads since 1995 calling themselves "The Heavy Hitters."

But if the rules are adopted, the firm would have to stop using the term "heavy hitters," because monikers would be banned.

Taglines could also be at risk. Buffalo, N.Y. attorney Jeffrey M. Freedman states in his ads, "We Get Results." But the rules say advertisements or statements can't contain "statements that are reasonably likely to create an expectation about results the lawyer can achieve."

"It's not going to put me out of business," said Freedman. "But I'm not happy about it."

Some lawyers are also unhappy with the new required disclosures for TV ads, which will add about 10 seconds to each commercial. According to Paul Harding of the Martin, Harding and Mazzotti firm, this makes his 15-second spots worthless.

Hitting small firms hardest?

A. Vincent Buzard, a partner at Harris Beach in Rochester, N.Y. and the immediate past president of the New York State Bar Association, believes that too many ads undermine the dignity of the profession and the legal system. When he took office, he set out to do something about it, and created the task force that wrote most of the rules.

"Inappropriate lawyer advertising causes the public and the legal system problems because it reinforces the myth that there's a litigation explosion," he said. "It convinces people to believe that the legal system is some kind of lottery - the idea of 'come to us and you'll be wealthy.'"

But David J. Abeshouse, a Uniondale, N.Y. business litigator, believes the new rules will primarily "hurt small, high-end practices, because it ties our hands in terms of being able to tell prospective clients who we are."

"Solos and small firms are the ones who benefit most from advertising," agreed Syracuse, N.Y. lawyer Nicole Black. "Big firms have the ability to get clients in traditional ways, like sponsoring or underwriting events."

The most onerous change for smaller firms, Abeshouse said, are new notification requirements which state that a copy of each advertisement or solicitation must be filed with the appropriate attorney disciplinary committee "at the time of its initial dissemination."

And because the rules' labeling and notification requirements apply to "all computer-accessed information," Abeshouse believes that websites, blogs, podcasts and possibly even e-mail could in some circumstances be considered ads.

"What if I'm sending an e-mail to someone who's not a client?" he asked. "What if something I said can be interpreted to be self-promotional?"

Port Jefferson Station, N.Y. attorney Alison Shields has her own blog, Legal Ease Blog, and she's also concerned about the filing requirements.

"Some people blog three times a day. What kind of administrative nightmare would that be?" she complained.

Freedman predicted that if the rules go into effect as planned, "there definitely will be litigation. I believe this will ultimately be settled by the U.S. Supreme Court."

Roslyn, N.Y. plaintiffs' attorney Philip L. Franckel agrees.

"I think they may be unconstitutional. Why should I have to tell [anyone] which TV stations my ads will be on and the frequency of their appearance? I've tried to come up with a legitimate reason to know that, but I can't come up with anything," he said.

But Roy D. Simon, Jr., a professor of legal ethics at Hofstra University School of Law, thinks the rules may survive a challenge.

The changes, he said, "are at the border of what the First Amendment allows by way of restrictions on lawyer advertising and may cross that border. But the border may be moving, and by the time these are challenged all the way up to the U.S. Supreme Court, which I believe they will be if they remain in their present form, the Court may decide this is acceptable."

Get a copy

The rules can be viewed at: www.nycourts.gov/rules/proposedamendments.shtml

Comments should be sent by Sept. 15 to: Michael Colodner, Esq., Counsel, Office of Court Administration, 25 Beaver Street, New York, N.Y. 10004.You can access a copy of the New Jersey Super Lawyer decision (Opinion 39, Committee on Lawyer Advertising) at: http://www.judiciary.state.nj.us/notices/ethics/CAA_Opinion%2039.pdf

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com

What the rules say

The key changes in the proposed New York lawyer advertising rules include:

# A 30-day moratorium on solicitations in wrongful-death or personal-injury cases. A limited exception is provided for claims that must be filed in less than 30 days.

# A ban on using actors to portray clients, judges or lawyers, and on inaccurate re-enactments. Depictions of a courtroom or courthouse would also be prohibited.

# A ban on paid endorsements, testimonials by current clients or nicknames (e.g., "The Hammer") in ads. Unrealistic claims or promises would also be prohibited.

# A prohibition on "pop-up" ads and chat-room solicitations.

# Two requirements for TV ads: a disclosure that the commercial is "an advertisement for legal services" and a disclaimer that "prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours, in which a lawyer or law firm may be retained."

The rules will require lawyers to file all ads for legal services, including radio and television ads, with the relevant disciplinary committee for review, and to translate all foreign-language ads into English. The submissions must be accompanied by information on where and how frequently the ads will appear.

The changes cover all manners of online advertising and solicitation, including websites and e-mail, and apply to out-of-state lawyers who solicit clients in New York.

Attorneys are sharply divided over the issue.

"The time has come to do something about this," said Robert E. Lahm, president of the New York Academy of Trial Lawyers, a two-year-old organization whose stated purpose is to improve lawyers' public image and credibility.

"I believe in the First Amendment, but I think too many [solicitations] go over the top," said Lahm, a Syracuse, N.Y. trial lawyer. "This kind of misleading advertising has to be reined in."

But critics contend the rules are overkill.

"The people who make grandiose statements should be controlled," said David J. Abeshouse, a Uniondale, N.Y. business litigator and ADR provider who also lectures on legal ethics. "But to make rules that affect everyone is using too broad a brush."

- Dick Dahl