The vagueness of New York’s new attorney advertising rules is bound to cause First Amendment problems. Speech is restricted with the use of vague terms.
Yesterday, I published a list of major law firms with New York offices that had not complied with the easiest part of the new attorney advertising rules, marking their home page as “attorney advertising.” (Some have since added the words.) While I poked a bit of fun at them in the process for not doing so, some can possibly make an argument for not putting the words up by claiming that the retention of clients is not the “primary purpose” of the site.
This is illustrated by a Carolyn Elefant post at My Shingle that inevitably leads to yet more issues. She is admitted to practice in New York, but her energy regulatory practice is out of Washington D.C. She says she won’t put the Scarlet A of advertising up because her web site is multi-dimensional and advertising isn’t the “primary purpose.” She acknowledges though, that “one purpose of my website and blog is to retain clients.”
So how, exactly, will “primary purpose” be defined? And does that refer to New York clients being the “primary purpose?”
I wrote of the vagueness issue when I asked, Is My Family Photograph An Ethical Violation in New York?, and followed up with another post here. There are more problems with phrases such as “techniques to obtain attention” and portrayal of lawyers “exhibiting characteristics clearly unrelated to legal competence.”
Two other law firm examples before I go, which are the bookends to Ms. Elefant’s gray area of the “primary purpose” of a web site: Nicole Black over at Sui Generis has a website for her business doing work on a contract basis for New York firms. Since the rules do “not include communications to …other lawyers” her site need not have The Mark.
My own site as a New York personal injury attorney, however, has The Mark at the bottom. While I think many of the rules will be struck down as unconstitutional due to their vagueness, I must face the reality that personal injury firms were the target of much of the rules. And I’d rather write about the issues than be the test case.
The litigation has already started, covered in this post at Sui Generis, complete with link to the Complaint.