NYSBA RULES FIASCO

The ridiculous recent restrictions on attorney "advertising" promulgated by the NY State Bar Association continue to raise heat among firm marketers and consultants.

Bruce Marcus chimes in, via a recent response to Carolyn Elefant of Law.com's blog review, cc'd to several of us who have been blasting the bar:

... As someone who was marketing for lawyers and accountants well before Bates,  I think you all miss the point. (See my letter to the NYS Bar on The Marcus Perspective.

Aside from the ludicrous and irrelevant rules as written, the real problem is that the rules have been written to preserve some mythical concept of the lawyer as an exalted professional who contributes to society through probity, integrity, knowledge, and dignity -- instead of recognizing the concept of serving the public and the client.

The ability to market, since Bates, has, in fact, enhanced the profession by making it more client oriented. The 21st century lawyer does a better job for both the profession and the client by informing and educating the client, by competing through improved services, by learning to listen -- in other words, by being genuinely client oriented. Here's a track record to prove it. (I don't mean this as a plug, but it's a point I made in my 2005 book [with August Aquila] entitled Client at the Core.)

In the early days, lawyers were concerned that clients would take a dim view of lawyer advertising. But survey after survey came up with one conclusion -- "What's the problem? We advertise our products and services, why shouldn't the lawyers?" The concept of ethics as promulgated by the Bar is medieval, and seems rooted in the guilds of the Middle Ages. They don't seem to understand the public, and they certainly don't understand the philosophical foundation of marketing professional services. The Bar Associations may get it right when they learn to look outward, instead of inward. And when they learn to read a calendar.

Here's a link to Marcus' letter to the NYSBA.

Here's more from Larry Bodine, Sui Generis, (Nichole Black), Antitrust Review,  f/k/a,  f/k/a again, Elefant, Bruce MacEwen.

Update 2/9: Eric Turkewitz chimes in here.

Update 2/13: Larry Bodine summarizes the rules here.

And (courtesy of the LawMarketing Listserv) Jeffrey Morgan (of Greenfield/Belser Ltd.) makes an important note about out-of-state folks:

While the rules are just for New York State read carefully under section 1200.8 [DR2-103] (fyi, DR stands for Disciplinary Rule).  The court included a section that states:

(k) The provisions of this section 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. (My emphasis added to the word not).

Consequently, if your firm is actively seeking to be retained by a client or clients that live in New York State, these rules may apply to you and your firm (depending on the actions you are taking).  How the Office of Court Administration plans on enforcing this rule remains to be seen.  But it does illustrate how these new rules raise more questions than provide answers or clear guidelines.