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Lawyer Ads in Cyberspace

By Shari Claire Lewis

Nearly 30 years ago, the U.S. Supreme Court decided Bates v. State Bar of Arizona (433 U.S. 350 (1977; available at www.law.cornell.edu/supct/html/historics/USSC_CR_0433_0350_ZS.html), holding that 'blanket suppression' of attorney advertisements was an unconstitutional interference with First Amendment rights. However, the Court also recognized that some regulation of attorney advertising was necessary to protect consumers who lacked legal sophistication. Thus, the Court ruled that statements in lawyer ads that might pass muster in other industries could be misleading and were subject to reasonable regulation as to time, place and manner.

The conflict between the First Amendment right to speech and the necessity and reasonableness of regulation of attorney advertising has continued to evolve since Bates, responding not just to changing mores regarding professional conduct, but to the challenges of new technology media. New York State's new ethical rules governing attorney advertising, which went into effect on Feb. 1, 2007, specifically address the use of Internet and electronic technology to advertise attorney services and serve as an example of how other states may revise their attorney advertising rules as well. (The NY rules are available at www.nycourts.gov/rules/attorney_ads_amendments.shtml.) The new rules go beyond the well-known standard, contained in DR 2-101(a), that advertisements may not contain statements or claims that are 'false, deceptive or misleading.' The changes have generated a great deal of controversy. Nevertheless, the failure to completely understand and follow the rules could lead to sanctions or other penalties that lawyers should make every effort to avoid.

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