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Tuesday, March 06, 2007

Bruce Boyden Does Not Want You as a Client

Hello everyone! Thanks to Dan and everyone at Prawfsblawg for inviting me to have another go at this whole blogging thing. Maybe someday I'll even work up to instant messaging. For an internet law specialist, I'm surprisingly retrograde.

As for the title of this post, I'm just being cautious. I'm still licensed to practice in New York State, which means that I'm subject to the new amendments to the New York Lawyers Code of Professional Responsibility that took effect Feb. 1. The intent of most of the amendments is to crack down on attorney advertising, including advertising over the web. "Advertisement" is defined as "any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm." So I just wanted to be clear where I stand, because the requirements if this IS advertising are somewhat burdensome.

I'm still not out of the woods, however. Under my reading of the new amendments, any New York attorney running a website for any purpose whatsoever -- advertising or not -- must either put his or her name in the domain name, or plaster his or her name all over the site. That site full of baby pictures? Your somewhat embarrassing "Neighbours" fan site? They'd better say "Jane Q. Lawyer, Esq." on each and every page. And make sure you don't engage in the practice of law anywhere on the site.

More after the jump.

DR 2-102 is the section of the New York rules that, according to its title, governs "[p]rofessional notices, letterheads, and signs." The amendments added new subsection (e), which I suspect was intended just to add websites onto the list of other business-type stationary lawyers could use, such as business cards and professional announcements. The problem is that DR 2-102(e) goes way beyond that situation, to the creation of a website by an attorney for any reason. DR 2-102 states that "[a] lawyer or law firm may utilize a domain name for an internet web site that does not include the name of the lawyer or law firm" provided all of the following are true:

(1) all pages of the web site clearly and conspicuously include the actual name of the lawyer or law firm;
(2) the lawyer or law firm in no way attempts to engage in the practice of law using the domain name;
(3) the domain name does not imply an ability to obtain results in a matter; and
(4) the domain name does not otherwise violate a disciplinary rule.

What does it mean to "utilize a domain name for an internet web site"? Am I doing that right now? I didn't register "blogs.com," and I didn't create "Prawfsblawg," but I'm still arguably "using" blogs.com for Prawfsblawg in some sense. In any event, even if what I'm doing now doesn't qualify, another site I used to maintain at www.omnivore.org surely did. Omnivore is a site that I used to share with several friends. "Omnivore" is obviously not my name, which means that "all pages of the web site" -- including the portions my friends authored? -- would have to "clearly and conspicuously" include my actual name. The anonymous "Neighbours" fan site is therefore clearly out (and who would want to create such a site non-anonymously?). I doubt this was the intent of the rule, but that's how it's written, unless there's an escape route I'm not seeing.

To which my natural inclination is to say, "Come and get me, coppers!"

Posted by Bruce Boyden on March 6, 2007 at 12:30 AM in Blogging | Permalink

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