Advertising and Solicitation

Question 1

What are the restrictions on a firm’s name?

Answer 1

The firm name MUST NOT BE MISLEADING

Trade names (e.g. “Aaaabest Law Firm” or “Law Firm of NY”) are NOT permitted

Question 2

How can an attorney communicate a specialization?

Answer 2

A lawyer may publicly identify one or more areas of law in which the lawyer or the law firm practicesOR may state that the practice of the lawyer of the law firm is limited to one or more areas of law

BUT a lawyer may not say he or she is a specialistUNLESS approved by aprivate organization approved by the ABA or another state and holds that the certification is not recognized by a NY authority

Question 3

What is advertising?

Answer 3

ADVERTISING = any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or law firm’s services the primary purpose of which is for retaining the lawyer or firm

EXCEPTION:Rules on advertising DOESN’T apply to communications to existing clients or other lawyers

Question 4

REQUIREMENTS FOR ANY ADVERTISING

What 3 things MUST advertisements include?

Answer 4

Advertisements MUST include:

1) NAME, principal law office ADDRESS and TELEPHONE number of the lawyer or law firm whose services are being offered

The telephone number may contain a domain name, nickname, moniker or motto that does not otherwise violate the Rules

2) Any words or statements required by the Rules must be clearly legible and capable of being read by the average person and of being understood if spoken aloud

On websites, the statements must appear on the home page

3) The label “attorney advertising” must appear on the first page of any direct mail or in the subject line of any email

Question 5

PERMITTED ELEMENTS OF ADVERTISING

What 9 things MAY advertisements include?

Answer 5

9 things MAY be included in an advertising, assuming that they are truthful and not misleading:

1. Educational background and degrees
2. Dates of admission to the bar and areas of practice
3. Public offices and teaching positions held
4. Memberships in bar associations and other professional organizations
5. Foreign language FLUENCY
6. Names of regularly represented clients, if the clients consent in writing
7. Acceptable credit arrangements and participation in group or prepaid legal services programs
8. Legal fees, contingent fee rates, range of fees for services, hourly rates and fixed fees for specific services (and if it does so, the firm must abide by that rate for a reasonable period of time)
9. Bona fide professional ratings, a rating is NOT “bona fide” unless it is unbiased and nondiscrimination

Question 6

Is an ad allowed to create client expectations?

Answer 6

Depends…

ONLY IF there is the disclaimer:
“Prior results do not g’tee a similar outcome”…

then an ad MAY INCLUDE…

1) Stmts that are reasonably likely to create an expectation about the results the lawyer CAN achieve;
2) Stmts that compare lawyer’s services w/ those of another lawyer;
3) Testimonials or endorsements of clients or fmr clients; OR
4) Stmts describing or characterizing the quality of the lawyer’s or law firm’s service

Question 7

What is forbidden in advertising?

Answer 7

AN ADVERTISEMENT MAY NEVER INCLUDE:

1) A paid endorsement or testimonial about lawyer/law firm without disclosing that he person is being compensated; OR
2) Actors to portray the lawyer, firm members, clients or events without disclosure

Question 8

What are the rules re: domain names?

Answer 8

You can use a domain name that does not include the name of the lawyer/law firm PROVIDED that:

1) All pages of the website clearly and conspicuously include the actual name of the lawyer/law firm;
2) Lawyer/law firm in NO way attempts to engage in the practice of law using the domain name; AND
3) The domain name does not imply an ability to obtain results in the matter (winnerslaw.com)

Question 9

What are additional reqs for TV and radio advertising?

Answer 9

Television and radio ads must be approved by the lawyer, include the name, address, telephone number for the lawyer/firm and kept for 3 YEARS following the initial dissemination

Ads contained in a computer-accessed communications shall be retained for a period of not less than 1 YEAR

Question 10

How is solicitation by lawyers treated?

Answer 10

All solicitations are advertising and are subject to the rules for advertising…

PLUS some add-on obligations.

Question 11

What forms ofsolicitation are prohibited?

Answer 11

A lawyers shall NOT engage in solicitation by:

1. In-person communication
2. Live telephone communication
3. Real-time or interactive computer access communication

NOTE: Does not include websites, pop-up ads, or emails

UNLESS you’re soliciting:

1. A close friend;
2. Relative;
3. Former client; OR
4. An existing client

NOTE:If the solicitation is improper, that you cannot accept employment result from such communication

Question 12

When are PERMITTED forms of solicitation prohibited?

Answer 12

No Solicitation (in ANY FORM) allowed if:

1) The recipient has made known a desire not to be solicited;
2) Communication is false or misleading;
3) The solicitation involves coercion, duress, harassment; OR
4) The lawyer intends or expects but does not disclose that the legal services will be performed primarily by ANOTHER lawyer who is not affiliated with the soliciting lawyer as a partner, associate or counsel

Question 13

TARGETED MAIL

What are the 6 rules re: targeted mail?

Answer 13

FOR TARGETED MAIL, THE FOLLOWING RULE APPLY:

1) You MAY send direct mail to groups of people likely to need legal services
2) In the case of self-mailing brochures or postcards, the words “Attorney Advertising” has to be appear on it Email has to say “Attorney Advertising” in the subject line
3) If a retainer agreement is included in the solicitation the words “do not sign” shall appear on the client signature line
4) These provisions ALSO apply to lawyers not admitted in NY who solicit retention by NY residents
5) Solicitations directed at predetermined recipients, if prompted by a specific occurrence involving or affect a recipient, MUST disclose how the attorney learned the recipient’s identity and need for legal services

A list of the names and address of the recipients must be kept for three years.

6) No solicitation for personal injury or wrongful death suits by the lawyer or any agent/representative before the 30th DAY of the incident…“COOLING OFF PERIOD”…

UNLESS a filing is required in less than 30 days, in which case no unsolicited communication until after the 15th DAY after the incident