Saturday, March 24, 2007

Is A Business Card An Advertisement?

Effective February 1, 2007, New York imposed new advertising rules for attorneys which are severely restrictive. The website of the New York State Bar Association contains a press release stating that the purpose of the rules is "to protect consumers from inappropriate, misleading, or overly-aggressive advertisements." To my mind, the real intent is to put the brakes on the television and print ads showing the traffic accident victim all bandaged up, in traction, and with casts on his/her arms and legs while "1-800-Get-A-Lawyer-Now" flashes in neon colors at the bottom of the screen. I think they're a real hoot, but acknowledge that they've contributed generally to the devolution of the legal profession's reputation back to the pleistocine era.

One of the things that has really taken me aback about the new rules is the possibility that an attorney's business card might be construed as an "advertisement." No, you haven't entered the Twilight Zone just yet. You read it correctly ... a business card! This is an issue that I first became aware of when reading Sui Generis, Nicole Black's excellent law blog.

Rule 1200.1(k) defines the term "advertisement," in pertinent part, as "any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services [emphasis added]." Apparently, there's been some debate among the legal cognoscenti as to whether an attorney's business card comes within that definition. As I read it, if a business card contains the attorney's name, address and other contact information (e.g., fax, telephone number and e-mail), it's not advertising as such information does not concern the lawyer or law firm's "services." From a purely academic standpoint, I can see where the issue could be clouded somewhat if the business card contains a slogan, hyperbole or other form of puffery ... and hey, what IS it with those awful and ubiquitous "scales of justice" logos anyway? Nonetheless, given that the drafters' real intent (IMHO) is to stop the media blitz of poor taste, high pressure, huckster-like advertisements favored by a certain segment of the bar, I think it's a real stretch to equate a business card with commercial exploitation of the type contemplated by the powers that be. To conclude otherwise could open the door to all kinds of bizarre results. What's next? Attorney stationery? The office display of Bar Admission Certificates to non-clients? You get my drift.

The organization known as Public Citizen has commenced an action to stop enforcement of the new rules on the grounds that they are too vague and constitute an unconstitutional restriction of First Amendment freedoms. I tend to agree. Had good taste and good sense in advertising been used initially, it's unlikely that the restrictive rules would've been enacted at all. Here's the bottom line ... if the lawsuit is successful, will those who previously used or contemplated using the offending ads have an epiphany and, as a result, exercise a modicum of self-restraint? Nah! I don't think so.


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