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Denise Howell Denise Howell
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Dennis M. Kennedy Dennis M. Kennedy
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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
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June 15, 2006

If Lawyers Can Advertise in New York, They Can Advertise Anywhere . . . But They Probably Can't

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Posted by Dennis M. Kennedy

Anyone else flummoxed by the proposed new advertising rules for lawyers in New York? Take a close look at this Law.com article and the text of the proposed amendments to the rules and let me know what you think.

As I read the rules, EVERY public communication is an advertisement and any communication that isn't an advertisement is probably a solicitation. That should cover almost every communication between lawyers and the public.

In either case, a shocking number of draconian and micro-managing rules will apply.

I'll let others consider the free speech and other aspects of these rules, but I'd love to see some marketing experts analyze what the actual marketing effectiveness of any communication that satisifes these rules will have. My tentative conclusion is that if an "advertisement" or "solicitation" might in even a limited way be effective, it will violate the rules. If it has even been recommended as an effective form of marketing, it will probably cause you trouble.

This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era.

Should you care? Well, consider this quote from the rules: "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this state if the lawyer provides or solicits any legal services in this state." Take a quick look at the definition of "computer-accessed communication" in the amended rules and consider how a website or blog located anywhere is likely to be treated by the plain language of these proposed rules.

Once again, we see a concern about a limited problem being turned into wide-ranging regulations that will have enormous unintended consequences and seem designed primarily to protect established, successful practices from new competition.

Are we seeing the last gasp of an attempt to apply 19th century concepts to a 21st century world, or will lawyers be the only group able to roll back the changes the Internet has brought to the rest of the world? I'm betting on the Internet, but I'm quite curious about what others think about these proposed rules and others like them. It might be a good discussion topic for a summer Friday.

Comments (2) + TrackBacks (0) | Category: Legal Ethics and Advertising | Practice of Law | Provocations


COMMENTS

1. Peter Boyd on June 17, 2006 8:13 AM writes...

Nice article Dennis. Here is my two bits as well: http://paperstreet.com/blog/index.php/archives/263

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2. rjon@HowToMakeItRain.com on June 18, 2006 10:44 AM writes...

With respect...I think post this is an OVERREACTION to the new advertising rules in NY. Let's skip the whining & look at the new rules objectively. What are the "biggies" you can't do?

1. You can't create a false expectation of future results;

2. You can't re-enact a scene or show a courthouse or a courtroom setting;

3. You can't use pop-up ads or e-mails that border on spam;

4. You can't have client testimonials; and

5. You MUST identify advertisments as advertisements.


BIG DEAL! Seriously, if an attorney's practice is so dependent on creating false expectations, showing cheesy courtroom settings & tricking people into reading their ads to get new clients or more & better business from existing clients or great referrals from others, then I would venture to say s/he has bigger problems to worry about than the new bar rules.

I do have issues with the way the prohibitions are written against client testimonials, but understand the logic that left unchecked, they may tend to create expectations of future results. And the meta tag prohibitions are problematic.

Bottom line...There are a TON of ethical, professional & HIGHLY PROFITABLE ways to Make It Rain for a small law firm that are in compliance with new Bar Rules for New York.


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