Last chance to save democracy, LIKELIHOOD OF CONFUSION
I know, I know — redundant. So in that spirit, I am reprinting part of what I wrote about this a couple of weeks ago, because comments close on the 15th of November and, what do you know, it’s already the tenth:
Public Citizen’s CL&P (Consumer Law and Policy) Blog wrote in September that New York is considering draconian advertising rules that would essentially make it impossible for lawyers to maintain blogs. I am excerpting liberally, but urge you to follow the link and the discussion at the CL&P Blog:
Stripped to their essence, the proposed amendments would define the term “advertisement” extremely broadly as any public communication made “by . . . a lawyer . . . about a lawyer.” Sec. 1200.1(k). This definition explicitly includes all forms of communication on the Internet, including websites, email, and instant messaging. Sec. 1200.1(m). There is no requirement that the speech be commercial in nature or related to the lawyer’s practice of law.
Because this blog contains information about its contributing attorneys, it would fall squarely within the proposed rule’s definition of advertising. If this blog were located in New York, contributing attorneys would therefore be required by the proposed rules to print a hard copy of the blog every time it is modified. Sec. 1200.6(n). They would then have to store the printout for a period of at least a year, and send an additional copy to the New York attorney disciplinary committee for its records. Sec. 1200.6(n) & (o)(iii). The rules would also require the blog to be branded with the words “Attorney Advertising” and include the names, office addresses, telephone numbers, and lists of licensing jurisdictions of participating attorneys. Sec. 1200.6(h), (j) & (k). Because the blog does not contain the full name of a lawyer or law firm in its URL, the page would need to list the names of participating attorneys in a font at least as large as the largest font on the page (in this case, the names would need to be in at least a 60-point font to match the large banner title). Sec. 1200.7(e)(1). Furthermore, although it surely could not have been intended to reach this broadly, the rule appears to subject any links from a website to these onerous restrictions. Sec. 1200.1(m).
The same rules would also apply to email sent by lawyers to public listservs, and even to private email if it “concern[s] the availability for professional employment of a lawyer or law firm.” Sec. 1200.1(l). Unlike web pages, however, email would have to be saved for a period of three years. Sec. 1200.6(n).
Finally, the proposed rules would impose a litany of other restrictions on attorney advertising that will primarily impact television advertisements, including prohibitions on the use of actors to portray judges, lawyers, or clients; the reenactment of events; and the use of celebrity endorsements. Sec. 1200.6(d). Most of these restrictions would not affect this blog, although, depending on how one reads the language, the picture of the Supreme Court’s facade at the top of the page would arguably run afoul of the restriction on “depict[ing] the use of a courtroom or courthouse.” Sec. 1200.6(d)(6).
Like many state restrictions on attorney advertising, New York’s proposed amendments appear to be intended less to prevent consumer misunderstanding than to prohibit the most effective forms of lawyer advertising. The burdens imposed on attorneys under these rules would be overwhelming and unworkable, would generate untold amounts of useless paperwork both for the attorney and the state disciplinary commission, and would totally undermine the potential of the Internet as a medium for cheap and efficient means of mass communication.
Only the proponents of these new regulations could possibly find a way to get LIKELIHOOD OF CONFUSION and Public Citizen to agree so completely. Idiotic, to say the least. Hat Tip to the blog with the British version of our name, Moron in a Hurry.
You can comment on the proposed rules by writing to:
Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004
by November 15, 2006. I encourage it.