By Dan Couvrette, Publisher of Family Lawyer Magazine
Law firms in New York state may soon have to print a disclaimer on any advertising that their certifications of specialization “did not come from a New York State governmental authority” in bold typeface, upper case letters, and in a font size “at least as large as the largest text used to state the fact of certification” if proposed alteration to the Rules of Professional Conduct is accepted.
The proposed provision is following a trend of restrictive advertising throughout the US. For example, in Texas and Oregon the Bar must approve any potential advertising, including all wording on a law firm’s website. In Florida, there are restrictions on all social media posts, all of which are to be submitted to the Bar for approval and require a fee and have a few weeks turn-around time. New York is also maintaining that oral disclaimers must be made prominent in the same tone that is ‘no lower than the cadence and level of audibility used to state the fact of certification.”
These new provisions already restrict any written advertisements, but will presentations and speeches also be subject? What about when a lawyer meets a prospective client in office or at a social setting? Usually lawyers have a footnote on their advertisements mentioning their certification by the state Bar of their specific specialization, are these further restrictions necessary or useful? A committee of the New York State Bar Association agree that board-certified attorneys “should not face an undue regulatory burden” in advertising their credentials, and the state bar’s Committee on Standards of Attorney Conduct said “there is relatively little danger of misleading the public from truthful disclosure.”
The New York changes stem from a Buffalo attorney who received board certification in civil trial advocacy by the National Board of Trial Advocacy, an ABA-accredited group, but was brought under scrutiny when he began referring to himself as a “board certified civil trial specialist.” The attorney challenged the previous provisions requiring certified attorneys to specifically note that certification does not necessarily indicate greater competence, which was thereby eliminated, as well as the vague rule to “prominently” note the specific disclaimer. Though the proposed rule has been altered to explain “prominent” in specific terms, the still restrictive changes may have unforeseen and unnecessary consequences to both practicing attorneys and their prospective clients.