I blogged recently about the new ad standards proposed for attorneys practicing in New York. It looks like they got their first high profile supporter in the 500-member Academy of Trial Lawyers

“The current rules and system have the effect of rewarding lawyers who engage in prohibited activities,” the academy said. “For some lawyers, the issue has become a simple matter of ‘risk versus reward.’ The amount of money a lawyer can make by attracting clients through improper solicitation and advertising is potentially substantial, and serious penalties for engaging in such prohibited activities are so rarely imposed that some lawyers yield to the temptation.”

In fact, the academy wants to push the issue further to deter shady lawyers from chasing down profitable cases.

“In addition to imposing criminal penalties, legislation should also make any contract for personal services secured by an attorney or law firm in violation of any of the [new rules] void and the lawyer or law firm would forfeit to the party injured double damages, to be recovered in a civil action or pursuant to the sentence imposed by a criminal court and should result in the permanent disbarment of the attorney,” the academy said.

They are even proposing a voluntary certification program for noncommercial civil trial attorneys. To be certified, attorneys would have to:

1. complete twice as many CLEs as required
2. promise higher standards of ethics
3. refuse referrals from lawyers that violate the new standards and restrictions

This raises a number of questions for how lawyers practice around the country.

1. Will the new restriction suggestions be an effective deterrent or should attorneys have criminal penalties imposed on them?
2. Is there merit to becoming certified to prove that you are “more ethical” than average attorneys?
3. If this program is successful, will bar associations around the country place more restrictions on law firm marketing campaigns?

One other thing I find somewhat interesting is that the academy wants to impose penalties on attorneys who “solicit business from a person the attorney knows or should have known is already represented.” The other profession that comes to mind that has implemented this rule is the real estate industry, where one real estate agent can’t solicit a represented seller until their contract with their current seller has expired - even if the seller’s agent is terrible.

On some level, I wonder if this doesn’t encourage lawyers to do whatever it takes to get the contract signed - as I’ve heard some real estate agents say “just get the bird in the cage” - and later, deal with any client expectations that come up. If once they’re signed, they’re yours for the case, couldn’t some unethical lawyers could exploit that with shoddy client service? And is that any better than those lawyers that try to solicit business from already represented clients?

From a business standpoint, the threat of competition seems more of a deterrent than a perceived monopoly over the client.

Update - See Bruce Marcus’ post called Back to the 1950s - The New Advertising Code of Ethics for some great insight on these issues.

Source: New York Law Journal

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