The money quote:

One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.

There's good practical advice in the post and a helpful chart you can download.

As a good starting point, check out Allison Shields' extensive summary here. Larry Bodine does not mince words in his reaction. Carolyn Elefant at Law.com summarizes a few posts. John Caher takes a gentle approach in the New York Law Journal..

I'm sure we'll see more commentary later, but there's a lot to read and digest.

My first quick read gave my the odd feeling that I was reading a new Miranda marketing warning for legal marketing ("You have the right to remain silent. Anything resembling marketing that you or your law firm may do may be treated as an ethical violation."), but I'll reserve judgment until I can read the rules more closely.

Two thoughts: First, I think that my characterization of the proposed rules as "micromanaging" is even more true of the final rules. Second, I believe that this type of state regulation, which undoubtedly will be picked up by other states, all but begs the FTC to step into lawyer regulation.

I understand that the next item on the New York agenda is a lawyer dress code. ;-) Hmm, maybe that's not so far-fetched. Consider this quote from the Caher article:

Finally, the new rules ban advertising "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." That provision was added partially in response to advertisements run by a Long Island, N.Y., attorney who permitted herself to be filmed in provocative poses to tout her real estate practice. Those ads generated complaints from Long Island practitioners who noted that the attorney's cleavage had nothing to do with her legal abilities, officials said.

The one element of these new rules I really like is the use of the all-but-forgotten word "moniker." I assume that the rules on use of monikers may bring the end to Morrison Foerster use of the term of endearment "MoFo." Heh.

I'm quite curious to see what the response of New York lawyers will be to these rules.

There are some great ideas and insights in the article. I personally would be afraid to try them in today's increasingly "Lawyers Must NOT Get Creative ABout Markeing" environment. The biggest danger: since the suggested methods are reasonable and recommended by marketing experts outside the legal profession, they might work.

As we continue to keep our eyes on the proposed regs in New York and elsewhere and the ongoing efforts of regulators to cause the FTC to regulate the regulators, it might be useful to think about Between Lawyers' own Denise Howell's quote in this article:

Blogging reaches a broader, more distributed audience, and provides a search-friendly, enduring archive of knowledge-oriented breadcrumbs.

The money quote:

To consider legal blogs as mere promotional devices is to ignore the significant contributions the legal bloggers make to the practice. And if, in the course of dissemination of information and informed opinion somebody gets the idea that one lawyer’s blog indicates that the blogger’s view of law is more thoughtful than the firm currently being used, there’s more benefit than harm – to both the profession and the clients.

Kevin O'Keefe reports that "FTC staffers, with the backing of commissioners, say they are concerned the changes are not specifically tailored to prevent deception and could instead suppress truthful, nonmisleading advertising."

Amen.

The New York efforts are one more round in the continuing state-by-state trend of vague, micro-managing restraints on lawyers' speech which are all-but-impossible to understand, let alone comply with, and directed at "problems" that existing rules should cover and have many unintended consequences, the most unintended of which may be to bring the FTC or some other Federal inititatives into the regulation of lawyers. In the current environment, national rules promulgated by the FTC might well be better than the crazy-quilt of state regulations we are now seeing.

Food for thought: As Kevin O'Keefe says, "Strange that the FTC may have to protect consumers from lawyers passing restrictions supposedly to protect consumers. Looks to me like 'well entrenched lawyers' are passing restrictions to prevent younger lawyers from taking some of their legal work through education based marketing that helps consumers."

More details and comments on the proposed rules can be found here and here and here and here. My comments from a few months ago can be found here.

Let's discuss, because the expansive definitions in the New York rules mean, on their face, that the rules may apply to any lawyer anywhere with a web page, let alone a blog.

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.

[Technorati tag: gonzo marketing]

I mention this decision because it iillustrates how difficult it is for lawyers and law firms to do "creative" advertising and, indeed, use the normal types of advertising techniques that are commonplace in advertising for other goods and services. This case should show those outside the legal profession why lawyers seem so reluctant to try standard advertising and marketing approaches and why many inside the profession think the rules create a minefield of potential problems for both the unwary and the well-intentioned.

The money quotes;

[T]he Florida Supreme Court reversed the referee’s ruling, finding the pit-bull ads "demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice."

The state high court relied in part on the comment to Rule 4-7.1, which provides: "A lawyer’s advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements using slogans … fail to meet these standards and diminish public confidence in the legal system (Note: emphasis mine; quoting the material quoted in the article, which uses the ellipsis)."

The law firm plans to appeal the case to the U.S. Supreme Court. It might be interesting to hear Judge Alito's answer to a question about this type of regulation of the legal profession.

My own opinion, for what it's worth, is that rulings such as this one provide a real disincentive for lawyers who want to innovate in almost any aspect of the practice of law, whether they are in Florida or elsewhere, because of the "chilling effect" that they create. I'm curous what others think.

The opinion does seem to only address actual advertisements. As you may have noticed, many law firms have marketing slogans these days. It'll be interesting to see how other Florida firms change their ads in light of this ruling.