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New Lawyer Advertising Rules in New York Violate Free Speech, Impede Internet Communications and Nonprofit Legal Services

Feb. 1, 2007

New Lawyer Advertising Rules in New York Violate Free Speech, Impede Internet Communications and Nonprofit Legal Services

Public Citizen Lawsuit Seeks Injunction Against Unconstitutional Rules

WASHINGTON, D.C. – New rules governing lawyer advertising set to go into effect in New York violate free speech and would impose anti-consumer restrictions on lawyers’ advertising and Internet communications, according to a lawsuit filed today by Public Citizen and a New York law firm.

The lawsuit seeks to prevent enforcement of New York’s attorney advertising rules that are scheduled to take effect on Feb. 1. The new guidelines are part of a revision of the rules contained in New York’s Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. The rules were released on Jan. 4 by the presiding justices of the four divisions of New York’s appellate courts.

The lawsuit contends that the rules’ broad language unconstitutionally prohibits truthful communication of information about legal services to New York consumers. There is also no exception for solicitation of potential clients for pro bono representation, and thus the rules would apply to brochures and other materials released by nonprofit legal groups that provide no-fee legal services on civil justice issues.

According to the lawsuit, a 30-day waiting period in the rules on communications to individuals and their families who have been involved in potential incidents of personal injury or wrongful death would prevent civil justice groups from adequately defending citizens’ rights. For example, the waiting period would prevent nonprofit legal organizations from contacting individuals at political demonstrations who have been physically harmed by police officers to inform them about their rights and the availability of pro bono legal representation.

“The right to engage in truthful legal advertising is not only a matter of free speech, but it also encourages competition in the marketplace for legal services,” said Greg Beck, an attorney for Public Citizen. “It’s also important for educating citizens about their rights and making it easier for consumers to find the appropriate legal representation.”

The new rules would extend to communication on the Internet, including Web sites and e-mails. They would require law practices and nonprofit organizations to label e-mailed solicitations “ATTORNEY ADVERTISING” and save copies of the e-mail for a year, even if the e-mail offers free legal representation.   Law firms would also have to label their Web sites as advertising and save a copy of the Web site at least every 90 days.

“While other states have debated limits on lawyers’ advertising, the New York rules go further than any other state in imposing burdensome restrictions on legal free speech,” said Beck. “New York has also taken the lead in interfering with and regulating legal Internet communications.”

Public Citizen represents its members and attorney James L. Alexander and his law firm, Alexander & Catalano.

To view the lawsuit, click here.

To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project.