The advertisement for Avandia attorneys came to the inbox as spam, and clearly appear to violate New York's new advertising rules for attorneys.

A few things to consider in doing an analysis: The return address to "stop receiving" the spam is in New York; The spammers claim to be a marketing firm, and not attorneys; The lawfirm(s) that hired the spammers are not identified, but clearly appear to have engaged the spammers as their agents to solicit clients.

Since the unsolicited email appeared in the personal account of William Childs (TortsProf), I am making the assumption of widespread distribution including New Yorkers. With that assumption, let's turn to the analysis (emphasis below is mine):

• Do the attorneys that hired the spammers come within New York's new ethics rules? Clearly, if they are are New York firms, they do. How about if they are non-New York firms? Or non-New York firms appealing for New York clients? The answer appears to be yes. Because, in addition to providing a New York address in the email, New York's rules for solicitation of clients:

  shall apply to a lawyer or members of a law firm not admitted to practice in this State who solicit retention by residents of this State.

• The spam itself violates New York's new advertising rules in that the subject line does not have the words "Attorney Advertising." From the rules:

  Every advertisement other than those appearing in a radio or television advertisement or in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to section 1200.8(a)(1) of this Part, shall be labeled "Attorney Advertising" on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words "Attorney Advertising" shall appear therein. In the case of electronic mail, the subject line shall contain the notation "ATTORNEY ADVERTISING."

• The spam violates New York's advertising rules because no law firm is identified, yet the rules clearly state that:

  Any solicitation covered by this section shall include the name, principal law
  office address and telephone number of the lawyer or law firm whose services
  are being offered.

Additionally, the rules for solicitation include the following provisions. If the easy ones above were violated, I assume there are multiple additional violations here:

(c) A solicitation directed to a recipient in this State, shall be subject to the
following provisions:
(1) a copy of the solicitation shall at the time of its dissemination be filed with the attorney disciplinary committee of the judicial district or judicial department wherein the lawyer or law firm maintains its principal office. Where no
such office is maintained, the filing shall be made in the judicial department
where the solicitation is targeted. A filing shall consist of:
(i) a copy of the solicitation;
(ii) a transcript of the audio portion of any radio or television
solicitation; and
(iii) if the solicitation is in a language other than English, an
accurate English language translation.
(2) such solicitation shall contain no reference to the fact of filing.
(3) if a solicitation is directed to a predetermined recipient, a list containing
the names and addresses of all recipients shall be retained by the lawyer or law firm for a period of not less than three years following the last date of its dissemination.

Will New York take its new rules seriously and investigate? Stay tuned...

(Addendum: Figuring out which law firms have hired the spammer should be easy for an enterprising citizen-journalist, simply by filling out the form at the website that TortsProf linked to and waiting to see who calls or emails in response. Then publish the names online for the world to see.)

2nd Addendum 6/19/07 The spammer may actually be worse than originally thought, and be engaged in outright fraud. At TortsProf, in the comments section, an individual from The Legal Advocate, whose name appeared on the spam mail, says a spammer hijacked their name. But the questions remain as to who is buyng names from such a "marketing" firm, and what New York will do about it as there are clear violations of the ethics rules going on.

Additional links:

• Attorney Advertising Regulations as of February 1 - now with Frequently Asked Questions (New York State Bar Association);
• Avandia Attorney Advertising Heats Up On Google (This blog, two days after Avandia issue hit the news.)
• New York Advertising Rules - Update on Lawsuit (This blog)
  
  

(Eric Turkewitz is a personal injury attorney in New York. He is not handling Avandia lawsuits.)

Labels: Attorney Ethics