The promise of free speech under the First Amendment to the Constitution applies to all. Okay, most. Well, everybody but lawyers. At least it seemed that way. But as Nicole Black’s summary of the hot button issue of the new New York Lawyer Advertising Rules shows, this may be changing. Unfortunately, it took a federal court’s injunction, as the powers in the New York State Courts still cling to the belief that there is no such thing as free speech for lawyers.
The issue of lawyer advertising makes this discussion difficult, as I’ve posted here before, because some of the garbage that lawyers have put out on the internet to promote themselves is downright disgraceful. I hate it and I’m appalled by it. But would it not be better to attack it as a matter of fraud and deception rather than prior restraint? Do we need to abridge free speech to stop lawyers from being liars?
The intrusiveness of the new Rules was, frankly, pretty darn clear. A lawyer couldn’t show a photograph on her website of her family because it was unrelated to her practice of law. Or mention that she was a little league coach in her spare time. Why not? She’s not allowed to be human, and let potential clients know that her interests went beyond a particular practice area?
And what was the point of a Rule prohibiting a picture of a courthouse? Does anyone believe that such a pic imply that the lawyer lives there or “owns” it? These are the images that people associate with lawyers, and they serve to mislead no one. The rules ran amok.
The problem is not that New York needed new rules. The problem is that New York doesn’t enforce the rules it has, though even the rules as set forth in the Code of Professional Responsibility infringe on protected speech. What, you say! How can that be? When was the last time you read through the Code? It’s replete with limitations on what you can say publicly about a case, or to criticize public officials. It’s not that you can’t say whatever you want, just that you can’t do it without being subject to discipline. But these are more political rather than commercial concerns, and advertising rules apply to advertising.
The bottom line is that New York has taken the approach that when a problem arises, we need more rules. Rules are the solution to all that ails us. Hooray for rules! This approach fails to recognize that there are two components to any system that seeks to use the might of the government to control. First there are limits. Second, the limits are enforced.
New York has limits. It’s always had limits. But there’s no one minding the store. Is anyone googling lawyer websites to see whether there’s compliance or violations? The official response, I suppose, is that they will wait for someone to complain and then, and only then, will anyone bother to take a look. This approach, of course, has never been an effective weapon to stop deception by lawyers. For god’s sake, there are TV adds across the country, and nobody cares enough to deal with them. Can it be more flagrant?
Instead, the lawyers inclined to follow the rules, whether they like them or not, are the ones who will suffer for any new rules. The lawyers who pay no heed, or can’t be bothered to even learn what the rules are, will continue to ignore or disregard them. The rules will have no impact on the mutts of the profession.
Some years ago, I had a correspondence with a former Chief Judge of the Court of Appeals about a rule he sought to impose to provide for sanctioning lawyers. My position was that lawyers who abided the law, followed the rules and behaved appropriately, were at a perpetual disadvantage to those who ignored or flouted the law and rules because judges would rarely, if ever, do anything about it. It put lawyers who obeyed the law at a great disadvantage to those who didn’t, and was a clear incentive to ignore the law and rules. The Chief Judge agreed with me.
The same is true of the infringement of free speech. Those of us inclined to comply are the ones who would never be deceptive to begin with. Those lawyers who are hellbent on misleading the public won’t comply with any rules, regardless of how stringent they may be. So if New York wants to do something about lawyer advertising, forget the new rules and start enforcing the rules you have. It’s about time that the lawyers who follow the rules get a break, and that we are allowed to enjoy the first amendment just like the rest of our fellow citizens.
The issue of lawyer advertising makes this discussion difficult, as I’ve posted here before, because some of the garbage that lawyers have put out on the internet to promote themselves is downright disgraceful. I hate it and I’m appalled by it. But would it not be better to attack it as a matter of fraud and deception rather than prior restraint? Do we need to abridge free speech to stop lawyers from being liars?
The intrusiveness of the new Rules was, frankly, pretty darn clear. A lawyer couldn’t show a photograph on her website of her family because it was unrelated to her practice of law. Or mention that she was a little league coach in her spare time. Why not? She’s not allowed to be human, and let potential clients know that her interests went beyond a particular practice area?
And what was the point of a Rule prohibiting a picture of a courthouse? Does anyone believe that such a pic imply that the lawyer lives there or “owns” it? These are the images that people associate with lawyers, and they serve to mislead no one. The rules ran amok.
The problem is not that New York needed new rules. The problem is that New York doesn’t enforce the rules it has, though even the rules as set forth in the Code of Professional Responsibility infringe on protected speech. What, you say! How can that be? When was the last time you read through the Code? It’s replete with limitations on what you can say publicly about a case, or to criticize public officials. It’s not that you can’t say whatever you want, just that you can’t do it without being subject to discipline. But these are more political rather than commercial concerns, and advertising rules apply to advertising.
The bottom line is that New York has taken the approach that when a problem arises, we need more rules. Rules are the solution to all that ails us. Hooray for rules! This approach fails to recognize that there are two components to any system that seeks to use the might of the government to control. First there are limits. Second, the limits are enforced.
New York has limits. It’s always had limits. But there’s no one minding the store. Is anyone googling lawyer websites to see whether there’s compliance or violations? The official response, I suppose, is that they will wait for someone to complain and then, and only then, will anyone bother to take a look. This approach, of course, has never been an effective weapon to stop deception by lawyers. For god’s sake, there are TV adds across the country, and nobody cares enough to deal with them. Can it be more flagrant?
Instead, the lawyers inclined to follow the rules, whether they like them or not, are the ones who will suffer for any new rules. The lawyers who pay no heed, or can’t be bothered to even learn what the rules are, will continue to ignore or disregard them. The rules will have no impact on the mutts of the profession.
Some years ago, I had a correspondence with a former Chief Judge of the Court of Appeals about a rule he sought to impose to provide for sanctioning lawyers. My position was that lawyers who abided the law, followed the rules and behaved appropriately, were at a perpetual disadvantage to those who ignored or flouted the law and rules because judges would rarely, if ever, do anything about it. It put lawyers who obeyed the law at a great disadvantage to those who didn’t, and was a clear incentive to ignore the law and rules. The Chief Judge agreed with me.
The same is true of the infringement of free speech. Those of us inclined to comply are the ones who would never be deceptive to begin with. Those lawyers who are hellbent on misleading the public won’t comply with any rules, regardless of how stringent they may be. So if New York wants to do something about lawyer advertising, forget the new rules and start enforcing the rules you have. It’s about time that the lawyers who follow the rules get a break, and that we are allowed to enjoy the first amendment just like the rest of our fellow citizens.