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Thursday, May 26, 2011

New York Attorney Advertising Rule 7.1 Amended

Amendments to Rule 7.1 (c), (d), (e) and (g) of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, were approved by the four presiding justices of the Appellate Division departments. The amendments allow the use of testimonials or endorsements from clients with respect to a pending matter, as long as the clients give informed consent. They allow actors to portray judges, lawyers or clients provided the advertisements disclose that the characters are actors. The rule prohibiting a pop-up or pop-under advertisement in connection with computer-accessed communications has been eliminated.

Former Rule 7.1 (c), (d) (e) and (g) of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, is set forth below, with the deleted sections highlighted:

(c) An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending; [DELETED]
(2) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor;
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case; [DELETED]
(4) use actors to portray the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same;
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence; [DELETED]
(6) be made to resemble legal documents; or
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter. [DELETED]

(d) An advertisement that complies with paragraph (e) may contain the following:

(1) statements that are reasonably likely to create an expectation about results the lawyer can achieve;
(2) statements that compare the lawyer's services with the services of other lawyers;
(3) testimonials or endorsements of clients, where not prohibited by paragraph (c)(1), and of former clients; or [DELETED “where not prohibited by paragraph (c)(1)”]
(4) statements describing or characterizing the quality of the lawyer's or law firm's services.

(e) It is permissible to provide the information set forth in paragraph (d) provided:
[DELETED “subdivision (d) of this section” and replaced it with “in paragraph (d)”
(1) its dissemination does not violate paragraph (a); [DELETED “paragraph (a) and replaced it with “subdivision (a) of this section’]
(2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and
(3) it is accompanied by the following disclaimer: "Prior results do not guarantee a similar outcome."

(g) A lawyer or law firm shall not utilize:
(1) a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firm's own web site or other internet presence; or [DELETED]
(2) meta tags or other hidden computer codes that, if displayed, would violate these Rules.


Rule 7.1 of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, now provides:

Rule 7.1: Advertising.

(a) A lawyer or law firm shall not use or disseminate or participate in the use
or dissemination of any advertisement that:


(1) contains statements or claims that are false, deceptive or misleading;
or

(2) violates a Rule.

(b) Subject to the provisions of paragraph (a), an advertisement may include
information as to:

(1) legal and nonlegal education, degrees and other scholastic distinctions,
dates of admission to any bar; areas of the law in which the lawyer or law
firm practices, as authorized by these Rules; public offices and teaching
positions held; publications of law related matters authored by the lawyer;
memberships in bar associations or other professional societies or
organizations, including offices and committee assignments therein; foreign
language fluency; and bona fide professional ratings;

(2) names of clients regularly represented, provided that the client has
given prior written consent;

(3) bank references; credit arrangements accepted; prepaid or group legal
services programs in which the lawyer or law firm participates; nonlegal
services provided by the lawyer or law firm or by an entity owned and
controlled by the lawyer or law firm; the existence of contractual
relationships between the lawyer or law firm and a nonlegal professional or
nonlegal professional service firm, to the extent permitted by Rule 5.8, and
the nature and extent of services available through those contractual
relationships; and

(4) legal fees for initial consultation; contingent fee rates in civil
matters when accompanied by a statement disclosing the information required
by paragraph (p); range of fees for legal and nonlegal services, provided
that there be available to the public free of charge a written statement
clearly describing the scope of each advertised service; hourly rates; and
fixed fees for specified legal and nonlegal services.


(c) An advertise shall not:

(1) include a paid endorsement of, or testimonial about, a lawyer or law
firm without disclosing that the person is being compensated therefore;

(2) include the portrayal of a fictitious law firm, the use of a fictitious
name to refer to lawyers not associated together in a law firm, or otherwise
imply that lawyers are associated in a law firm if that is not the case.

(3) use actors to portray a judge, the lawyer, members of the law firm, or
clients, or utilize depictions of fictionalized events or scenes, without
disclosure of same; or

(4) be made to resemble legal documents

(d) An advertisement that complies with subdivision (e) of this section may
contain the following:

(1) statements that are reasonably likely to create an expectation about
results the lawyer can achieve;

(2) statements that compare the lawyer's services with the services of other
lawyers;

(3) testimonials or endorsements of clients, and of former clients; or

(4) statements describing or characterizing the quality of the lawyer's or
law firm's services.

(e) It is permissible to provide the information set forth in subdivision (d)
of this section provided:

(1) its dissemination does not violate subdivision (a) of this section;

(2) it can be factually supported by the lawyer or law firm as of the date
on which the advertisement is published or disseminated;

(3) it is accompanied by the following disclaimer: "Prior results do not
guarantee a similar outcome"; and

(4) in the case of a testimonial or endorsement from a client with respect
to a matter still pending, the client gives informed consent confirmed in
writing.

(f) Every advertisement other than those appearing in a radio, television or
billboard advertisement, in a directory, newspaper, magazine or other
periodical (and any web sites related thereto), or made in person pursuant to
Rule 7.3(a)(1), shall be labeled "Attorney Advertising" on the first page, or
on the home page in the case of a web site. If the communication is in the form
of a self-mailing brochure or postcard, the words "Attorney Advertising" shall
appear therein. In the case of electronic mail, the subject line shall contain
the notation "ATTORNEY ADVERTISING."

(g) A lawyer or law firm shall not utilize meta tags or other hidden computer
codes that, if displayed, would violate these Rules.

(h) All advertisements shall include the name, principal law office address and
telephone number of the lawyer or law firm whose services are being offered.

(i) Any words or statements required by this Rule to appear in an
advertisement must be clearly legible and capable of being read by the
average person, if written, and intelligible if spoken aloud. In the case of
a web site, the required words or statements shall appear on the home page.

(j) A lawyer or law firm advertising any fixed fee for specified legal
services shall, at the time of fee publication, have available to the public
a written statement clearly describing the scope of each advertised service,
which statement shall be available to the client at the time of retainer for
any such service. Such legal 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.

(k) All advertisements shall be pre-approved by the lawyer or law firm, and
a copy shall be retained for a period of not less than three years following
its initial dissemination. Any advertisement contained in a
computer-accessed communication shall be retained for a period of not less
than one year. A copy of the contents of any web site covered by this Rule
shall be preserved upon the initial publication of the web site, any major
web site redesign, or a meaningful and extensive content change, but in no
event less frequently than once every 90 days.

(l) If a lawyer or law firm advertises a range of fees or an hourly rate for
services, the lawyer or law firm shall not charge more than the fee
advertised for such services. If a lawyer or law firm advertises a fixed fee
for specified legal services, or performs services described in a fee
schedule, the lawyer or law firm shall not charge more than the fixed fee
for such stated legal service as set forth in the advertisement or fee
schedule, unless the client agrees in writing that the services performed or
to be performed were not legal services referred to or implied in the
advertisement or in the fee schedule and, further, that a different fee
arrangement shall apply to the transaction.

(m) Unless otherwise specified in the advertisement, if a lawyer publishes
any fee information authorized under this Rule in a publication that is
published more frequently than once per month, the lawyer shall be bound by
any representation made therein for a period of not less than 30 days after
such publication. If a lawyer publishes any fee information authorized under
this Rule in a publication that is published once per month or less
frequently, the lawyer shall be bound by any representation made therein
until the publication of the succeeding issue. If a lawyer publishes any fee
information authorized under this Rule in a publication that has no fixed
date for publication of a succeeding issue, the lawyer shall be bound by any
representation made therein for a reasonable period of time after
publication, but in no event less than 90 days.

(n) Unless otherwise specified, if a lawyer broadcasts any fee information
authorized under this Rule, the lawyer shall be bound by any representation
made therein for a period of not less than 30 days after such broadcast.

(o) A lawyer shall not compensate or give any thing of value to
representatives of the press, radio, television or other communication
medium in anticipation of or in return for professional publicity in a news
item.
(p) All advertisements that contain information about the fees charged by
the lawyer or law firm, including those indicating that in the absence of a
recovery no fee will be charged, shall comply with the provisions of
Judiciary Law s 488(3).

(q) A lawyer may accept employment that results from participation in
activities designed to educate the public to recognize legal problems, to
make intelligent selection of counsel or to utilize available legal
services.

(r) Without affecting the right to accept employment, a lawyer may speak
publicly or write for publication on legal topics so long as the lawyer does
not undertake to give individual advice.


Current through amendments included in the New York State Register, Volume XXXII,
Issue 21, dated May 25, 2011.