New York's Advertising Rules and the Problem of Ethics Laundering
You'd expect a personal injury attorney to flatly oppose any restrictions on anti-solicitation rules. But not New York Personal Injury Attorney Eric Turkewitz. In this post, Turkewitz criticizes New York's controversial 2007 advertising rule, which the Second Circuit hears today, not because the rules ban lawyer solicitation -- "an ugly blight on the profession," according to Turkewitz -- but because the rules outlaw certain protected First Amendment communications, while enabling lawyers to circumvent the ban through "ethics laundering."
Turkewitz writes that the new rules are at once overbroad and not broad enough. Ethical Consideration (EC) 2-18 of the rules defines a solicitation as an advertisement initiated by a law firm that is intended to persuade recipients to retain the firm and has lawyer profit as a significant motive. However, as Turkewitz points out, it's tough to know where to draw the line. If a blog merely references an accident, would that constitute a prohibited solicitation? If so, that would trigger First Amendment concerns.
Personally, I don't think there's much to worry about here: I don't view blogs as advertising, and referencing an accident to explain a point of law would fall within an educational, non-financially motivated exception to the rules.
Turkewitz's more interesting point concerns "ethics laundering" by attorney search services. Here's how it works:
The attorney search services... are web sites that are not affiliated with any one law firm, with charming names like WhoCanISue and SueEasy, that run ads trying to attract potential clients. Leads are then distributed by the company to attorneys, whose names do not appear anywhere on the website. There are dozens of these companies out there, and I regularly get calls and emails from them. One called PleaseGetMeAnAttorney, for example, sent me an unsolicited email that offered to provide leads at "$3,995.00 per territory, per month."
These attorney search services are particularly diabolical from the ethics standpoint. They are unlikely to have their home in New York and may not even be run by attorneys. They therefore will fall well outside any jurisdiction that New York courts may have to discipline for ethics violations. They can advertise free from any constraints and may skate right off the edges of the ethical pond
. But what of the attorneys that have signed up with them? They, no doubt, turn a blind eye to the devices used by the companies and will cry ignorance if confronted.
And very similar to the attorney search services are the "national" law firms that are little more than referral mills. They seek to sign up clients the same way the attorney search services do, but instead of getting paid a flat fee for leads they will receive a piece of the legal fee if the matter [is] successful, as part of a joint venture with local counsel.
How, exactly, is New York going to stop these outside lawyers and search services from soliciting in New York and laundering the ethical rules that local counsel must abide by? Well these outsiders are theoretically subject to New York's anti-solicitation rule under EC-221.
Turkewitz's solution to "ethics launderers" would be for the Office of Court Administration to use the Retainer Statements to catch the ethical launderers:
Those statements, that must be filed in every personal injury case taken on contingency, require the retained lawyer to specify who the referring sources are, be they attorneys or not. In the event of a tragedy that triggers the rule, OCA must anticipate the problem and do an immediate web search to see who is violating the rules, then cross-check that list against the incoming Retainer Statements. The rules must be clear now that, if the referring lawyer or service violated the anti-solicitation rule, then the matter will be forwarded to the disciplinary committee.
Turkewitz's discussion of ethics laundering is a must-read for every attorney disciplinary committee, which must realize that banning in-state lawyers from solicitation is only one piece of the puzzle in cleaning up lawyer advertising. Ethics laundering is the other.
Posted by Carolyn Elefant on January 23, 2009 at 11:29 AM | Permalink
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