Bar fails again to protect its members!

The proposed revisions to the New York Rules of Professional Conduct concerning lawyer advertising were referred to me by Lisa Solomon.

After reviewing the proposed changes, I had some thoughts, expressed below without reference to any one section. My comments are of a "macro nature," not focused on the language of any one section.

My first impression of the proposed rules concerning advertising by lawyers in New York suggested, “So what?” They are really seeking to impose a “truth in lending” standard.   That seems appropriate, though unnecessary since this is the law.

However, the more I read, the more I became concerned that the real focus here is not truth, but constriction of information …. And an attempt to restrict the playing field, sometimes otherwise called monopoly!

The large law firms, whom I suspect, are controlling the process of rules revision, do not want competition. They do their advertising and promotion in the board rooms and on the golf courses and in media that cost substantial sums of money. (I know that this is an oversimplification.) The small law firm can’t afford to use these channels of information distribution. Small law firms must use “free speech,” the Internet and similar avenues of inexpensive communication.  The question, then, is what is the Bar seeking to regulate with these revisions? Those channels that the small firm can afford to utilize!

It is one thing to regulate for truth and fairness in promotional statements, and to restrict hyperbole so as not to create false expectations by promotional language. It is another thing to say how the communication can be framed. (For example, that promotional matter cannot use pop-up technology.) It is also appropriate to regulate “ambulance-chasers,” defined in this context as seeking to influence people who are injured and otherwise unable to discern for themselves the difference between presentations/offers of assistance.

The restrictions that appear in the current version of the New York draft revisions concerning advertising suggest that the public is  generally moronic and in need of protection from the English language. The Bar seeks to regulate lawyers in ways that they do not, would not and could not regulate others such as doctors, accountants and plumbers, among others.  Why?

In my opinion, this regulation is not only in poor judgment but contrary to the free flow of legitimate speech (communicating to the public what the services of lawyers are and how each law firm can help its prospective clients). Further, and perhaps more to the point, once again the Bar fails to address the legitimate needs of its members. The Bar fails to understand once again that the Bar has a dual role, one is to protect the public (which, in this case, is already protected by the existing rules) and the other is to protect its members, lawyers. Where is the sensitivity towards its members in this instance. This writer doesn’t see it here.


Categorized in: