Muldoon, Getz & Reston

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Ethical Issues in Attorney Advertising
Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130
www.muldoongetz.com


 

Among the most important Disciplinary Rules to consider with advertising for attorneys are DR 2-101, 2-103 and 2-105.


“Specialist”

In Matter of Balcacer, 293 AD2d 107, 740 NYS2d 192 (1st Dept 2002), the attorney provided two advertisements, one in English, one in Spanish. Among the panoply of ethical violations was that the attorney held himself out as a “specialist” in certain areas of law. Aside from not being a specialist in these areas, it is improper to state that a lawyer or law firm is a specialist or specializes in a particular field of law. The Code of Professional Responsibility provides for very limited exceptions to this. DR 2-105.


Attorney Balcacer was suspended for six months. See also, Matter of Peperone, 201 AD2d 75, 615 NYS2d 212 (4th Dept 1994) (censure for using “specializing in” matrimonial law when attorney had previously received letters of caution for similar advertising). Don’t hold yourself out as a specialist in advertising; don’t do it in conversations.


Unintentionally misleading

While the First Department found intentional conduct in the Balcacer case, the same court also held that advertising misstatements may result in discipline, even where unintentional. In Matter of Power, 3 AD3d 21, 768 NYS2d 455 (1st Dept 2003), the attorney’s advertising in New Jersey relating to living trusts was found to be misleading. In the New York State “reciprocal discipline” proceeding, the attorney was censured.


Tasteless, but protected

Locally, the leading disciplinary case involving advertising is that of James Shapiro. In a 1996 decision, the subject attorney’s telephone page advertising was viewed by the Fourth Department as being “extremely offensive and degrading to the legal profession” but held it to be “constitutionally protected hyperbole” under Bates v State Bar of Arizona, 433 US 350, 97 S Ct 2691, 53 L Ed 2d 810 (1977). The attorney was censured for misleading advertising by the suggestion that he was operating a clinic separate from his law firm. The advertisement was also misleading because it suggested that his practice was limited to accident claims. Matter of Shapiro, 225 AD2d 215, 656 NYS2d 80 (4th Dept 1996).


Solicitation improper

Eight years later, in a second disciplinary ruling, the same attorney had solicited a vulnerable client. Three days after a woman was hit by a train, while still in the ICU, she received a letter from the attorney. Under DR 2-103(a)(iv), an attorney may not solicit employment from a prospective client if the age, physical emotional or mental state makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining the attorney.


Additionally, the attorney’s television advertising “grossly exaggerated and falsely depicted his skill and experience and failed to inform viewers that he does not reside in New York and has not engaged in the practice of law here since 1995.” The Fourth Department found the commercial to not be constitutionally protected hyperbole, and suspended the attorney for one year. Matter of Shapiro, 7 AD3d 120, 780 NYS2d 680 (4th Dept 2004).


Advertising

All attorney advertisements (whether radio, TV, billboard, print or other) must include the name, office address and phone number of the law firm. DR 2-101(k). A copy of all advertisements mailed or distributed (other than by radio, TV, directory, newspaper, magazine or other periodical) must be filed with the disciplinary committee. The advertisement may contain no reference to the fact of filing. Additionally, the attorney must keep a copy of the advertising material for a period of one year. DR 2-101(f).


Internet

The Code of Professional Responsibility does not address websites, but a NYS Bar Association ethics opinion analogized website advertisements to a radio or TV broadcast and thus the attorney must keep a copy of any Internet advertisement for at least one year following its last use, but need not file it with the disciplinary committee. NYS Bar Association Ethics Opinion 709 (1998).


Mailings

Where the advertisement is directed to predetermined addressees, a list of the name and address of everyone who was mailed must be kept by the attorney for at least one year following the last date of mailing or distribution. DR 2-101(f)(3). A copy of the letter must be sent to the disciplinary committee.



Fixed fees

Where an attorney advertises a fixed fee for specified legal services, the attorney shall, at the time of fee publication, have available to the public a written statement clearly describing the scope of each advertised service, which shall be delivered to the client at the time of retainer. The services shall include all those services that are recognized as reasonable and necessary under local custom in the area of practice in the community where the services are performed. DR 2-101(e).


If a fixed fee is advertised, a higher fee may not be charged. The lawyer may not charge more than the fixed fee unless the client agrees in writing that the services were not those services referred to or implied in the advertisement. DR 2-101(g). The attorney may be bound by the fee published for at least 30 days after publication. If broadcast, the 30-day rule applies as well. DR 2-101(h), (i).


Conclusion

Public relations professionals who assist attorneys in developing marketing campaigns may be unaware of these ethical requirements. See also, Annotation, Advertising as ground for disciplining attorney, 30 ALR4th 742.


© 2008 by Gary Muldoon