Bar Compliance Requirements for New York Law Firms
New York Bar Rules for Attorney Advertising
The most important part of developing an internet marketing campaign is understanding all of the bar rules that apply to attorney advertising for the State of New York. It is equally important to understand the trends in other states with more restrictive rules. Mistakes can be costly. At Internet LAVA we understand the importance of creating the most effective website while still maintaining an ethical approach that complies with the New York Rules of Professional Conduct.
Lawyers in New York that take a ethical approach to marketing tend to have websites that perform better in the short term and in the long run. We strive to provide our clients will practical suggestions to help them come into compliance and stay in compliance with each rule for attorney advertising. As the rules are changed and interpreted, we strive to keep our client's educated about the most recent changes and how it might effect their internet marketing campaign.
Attorney Advertising Through Computer-Accessed Communications
Under Part 1200 for the New York Rules of Professional Conduct, Rule 1.0 defines "computer-accessed communications" include information found on the types of internet presences, including any attachments or links related to the internet presences:
- Internet websites;
- Blogs;
- Chat rooms;
- List servers;
- Instant messaging
- Banner advertisements;
- Pop-up advertisements;
- Pop-under advertisements;
- Electronic mail; and
- Search engines.
New York Bar Rules on Testimonials
Many attorneys in New York include testimonials from former clients on their website. Increasing, business and legal profiles including AVVO, Google Places (also known as Google Local Business Listings or Google Maps), Insider Pages, and MerchantCircle give the viewer an opportunity to right a review or endorsement concerning the attorney's services.
Under the New York bar rules, the lawyer may not use such a testimonial or endorsement from a client if the matter is still pending.
Retaining a Copy of the Website Content and other Internet Communications
The general rules for New York Attorneys require that the law firm retain a copy of its internet website for a least one year. The law firm is not required to file a copy with the New York Department Disciplinary Committee. A copy of the contents of any web site covered by this Rule shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days.
The best solution for attorneys in New York for retaining a copy of the website content means utilizing certain computer programs or the website's content management system to automatically preserve a copy of the content for certain time periods or even each time a change is made.
With the right technologies in place, attorneys do not have problems retaining a copy of every change made on a website during the time periods required. Such systems of preserving changes to the content and graphics can also be used for blogs and directories. Talk with us about easy ways to preserve the information that your law firm publishes on-line.
Discussion of Prior Case Results
A discussion of prior case results should include the following disclaimer: “Prior results do not guarantee a similar outcome.” Many states are starting to enact more restrictive rules. Attorneys in other states have even been disciplined for having "misleading" information in the case results section of the website.
Case results remain an important part of any internet marketing campaign. For certain practice areas such as criminal defense, the clients is extremely reluctant to allow any information to be published about a case results. Although many criminal defense attorneys report that clients do give written permission to publish information about their case on-line, especially when a particularly good result is achieved.
Many client will publish their own information about their case result without ever telling the client. In fact, many popular on-line website such as Google Place Page Profiles, InsiderPages, and AVVO encourage former clients to leave comments or "rate" the attorney. This type of feed back is already common with hotels and restaurants. Many believe it is just a matter of time before a free exchange of information about the attorney occurs on-line automatically.
Obtaining written permission from the client to publish information about their case result is particularly important. We suggest writing the case results information that you wish to add to the website. Then send a letter to the client asking if that particular language can be included on the website. Also, state in the letter that the client can revoke this right at any point and the information will be taken off the attorney's website. Have a form that contains all this information with a place for the client to sign if he agrees to let the attorney publish the information. Although not required, this more cautious approach can prevent any misunderstanding and allow the former client to feel good about providing the attorney with this important privilege.
Laudatory Statements or Comparisons
Statements about the the level or quality of services provided should be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated.
Disclaimer for Home Page of the New York Attorney's Website
The rules require that the home page of the attorney's website which is primarily intended to advertise the services provided by the attorney shall be labeled “Attorney Advertising.”
Expectations of an Attorney-Client Relationship
If the attorney provides a discussion area on the website the attorney should be careful to avoid creating an expectation that an attorney-client relationship has been created. It is probably a good idea to explain on the website that submitting a "case evaluation" form does not create an attorney-client relationship. Attorneys should also make sure that certain steps are taken to protect those communications by a potential client so that the communications can not be viewed by any third party.
Meta-Tags and Other Hidden Code
For the websites of New York attorneys, the meta tags or other hidden computer codes must follow the same rules that would apply if the hidden computer code were displayed to the viewer by looking at the website.
Our Solutions
Although the attorney is ultimately responsible for any content on the website, the internet marketing company should assist the attorney with basic steps to comply with each New York bar rule on internet advertising. At Internet LAVA we only represent attorneys and other legal professionals. Contact us to discuss creating an effective internet marketing campaign today.
Information Center
The New York Bar Association's Most Recent Rules May Violate the First Amendment Free Speech Protections, Federal Court Rules (July 23, 2007) - Order in Alexander v. Cahill, 634 F.Supp.2d 239 (N.D.N.Y. 2007), which granted request for a declaration that N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1) are unconstitutional based on the current record, granted Plaintiffs’ request for a permanent injunction and enjoined the Defendants from enforcing amendments to the Disciplinary Rules of the Code of Professional Responsibility contained in N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6(c)(1), (3), (5), (7), and (g)(1), which took effect on February 1, 2007.
U.S. Court of Appeals Decision Which Affirms Most of the District Court's Decision (March 12, 2010) -
New York City Bar Association Rules for Lawyer Internet Websites -
New York Rules of Professional Conduct -
New York Lawyer's Code of Professional Responsibility -
New York Rules of Professional Conduct
RULE 7.1:
ADVERTISING
(a) A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that:
(1) contains statements or claims that are false, deceptive or misleading; or
(2) violates a Rule.
(b) Subject to the provisions of paragraph (a), an advertisement may include information as to:
(1) legal and nonlegal education, degrees and other scholastic distinctions, dates of admission to any bar; areas of the law in which the lawyer or law firm practices, as authorized by these Rules; public offices and teaching positions held; publications of law related matters authored by the lawyer; memberships in bar associations or other professional societies or organizations, including offices and committee assignments therein; foreign language fluency; and bona fide professional ratings;
(2) names of clients regularly represented, provided that the client has given prior written consent;
(3) bank references; credit arrangements accepted; prepaid or group legal services programs in which the lawyer or law firm participates; nonlegal services provided by the lawyer or law firm or by an entity owned and controlled by the lawyer or law firm; the existence of contractual relationships between the lawyer or law firm and a nonlegal professional or nonlegal professional service firm, to the extent permitted by Rule 5.8, and the nature and extent of services available through those contractual relationships; and
(4) legal fees for initial consultation; contingent fee rates in civil matters when accompanied by a statement disclosing the information required by paragraph (p); range of fees for legal and nonlegal services, provided that there be available to the public free of charge a written statement clearly describing the scope of each advertised service; hourly rates; and fixed fees for specified legal and nonlegal services.
(c) An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending;
(2) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor;
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case;
(4) use actors to portray the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same;
(5) rely on 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;
(6) be made to resemble legal documents; or
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.
(d) An advertisement that complies with paragraph (e) may contain the following:
(1) statements that are reasonably likely to create an expectation about
results the lawyer can achieve;
(2) statements that compare the lawyer’s services with the services of other
lawyers;
(3) testimonials or endorsements of clients, where not prohibited by
paragraph (c)(1), and of former clients; or
(4) statements describing or characterizing the quality of the lawyer’s or
law firm’s services.
(e) It is permissible to provide the information set forth in paragraph (d) provided:
(1) its dissemination does not violate paragraph (a);
(2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and
(3) it is accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.”
(f) Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site. If the
communication is in the form of a self-mailing brochure or postcard, the words “Attorney Advertising” shall appear therein. In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”
(g) A lawyer or law firm shall not utilize:
(1) a pop-up or pop-under advertisement in connection with computer- accessed communications, other than on the lawyer or law firm’s own web site or other internet presence; or
(2) meta tags or other hidden computer codes that, if displayed, would violate these Rules.
(h) All advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered.
(i) Any words or statements required by this Rule to appear in an advertisement must be clearly legible and capable of being read by the average person, if written, and intelligible if spoken aloud. In the case of a web site, the required words or statements shall appear on the home page.
(j) A lawyer or law firm advertising any fixed fee for specified legal services shall, at the time of fee publication, have available to the public a written statement clearly describing the scope of each advertised service, which statement shall be available to the client at the time of retainer for any such service. Such legal services shall include all those services that are recognized as reasonable and necessary under local custom in the area of practice in the community where the services are performed.
(k) All advertisements shall be pre-approved by the lawyer or law firm, and a copy shall be retained for a period of not less than three years following its initial dissemination. Any advertisement contained in a computer-accessed communication shall be retained for a period of not less than one year. A copy of the contents of any web site covered by this Rule shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days.
(l) If a lawyer or law firm advertises a range of fees or an hourly rate for services, the lawyer or law firm shall not charge more than the fee advertised for such services. If a lawyer or law firm advertises a fixed fee for specified legal services, or performs services described in a fee schedule, the lawyer or law firm shall not charge more than the fixed fee for such stated legal service as set forth in the advertisement or fee schedule, unless the client agrees in writing that the services performed or to be performed were not legal services referred to or implied in the advertisement or in the fee schedule and, further, that a different fee arrangement shall apply to the transaction.
(m) Unless otherwise specified in the advertisement, if a lawyer publishes any fee information authorized under this Rule in a publication that is published more frequently than once per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after suchpublication. If a lawyer publishes any fee
information authorized under this Rule in a publication that is published once per month or less frequently, the lawyer shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information authorized under this Rule in a publication that has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication, but in no event less than 90 days.
(n) Unless otherwise specified, if a lawyer broadcasts any fee information authorized under this Rule, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such broadcast.
(o)A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television or other communication medium in anticipation of or in return for professional publicity in a news item.
(p)All advertisements that contain information about the fees charged by the lawyer or law firm, including those indicating that in the absence of a recovery no fee will be charged, shall comply with the provisions of Judiciary Law §488(3).
(q) A lawyer may accept employment that results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services.
(r) Without affecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice.