ed note: below find a guest post from bruce macewen, attorney and author of the outstanding blog: adam smith, esq. bruce is a top-flight thinker and writer. but don’t take my word for it. see for yourself in this piece about a subject that we’ve examined many times: overly burdensom restrictions on attorneys.
The 18th Century Is Alive & Well in New York
A few months ago an online flurry of commentary erupted over proposed amendments to the rules that govern lawyer advertising in New York. Among other things, the proposals would define the term “advertisement” extremely broadly as any public communication made “by…a lawyer…about a lawyer.” Interestingly, it explicitly includes all online communications, including websites, emails, and instant messaging. There is no requirement that the speech be commercial or related to the lawyer’s practice. The rules also require that every time a site (such as “Adam Smith, Esq.”) is modified—every time I publish a new piece, presumably—it must be printed out in hard copy, stored for one year, and an additional copy mailed to the New York attorney disciplinary committee for its records. As if this weren’t antediluvian enough, the site would have to be branded with the words “Attorney Advertising” in a font at least as large as the largest font on the page (so, about 60 points to match the banner title). There are also draconian restrictions on TV and print advertisements, which fortunately don’t concern me, but which would be laughable if they weren’t so bizarre: No client testimonials; no images of judges, courtrooms, or courthouses; no use of “nicknames, moniker, motto, or trade name[s]”; and God forbid nothing “about results the lawyer can achieve [or] statements describing or characterizing the quality of the lawyer’s or law firm’s services.” After you’ve picked yourself up off the floor at the news that 18th-Century thinking is alive and well (and pre-Bill of Rights 18th-Century thinking, at that), you might take a look at my letter offering comments on the proposal. We shall see whether sanity, or medievalism, triumphs in New York.
Update: Thursday November 9, 9:10 am Charlie Green, co-author with David Maister of “The Trusted Advisor”, is, I’m pleased to report, a regular reader of “Adam Smith, Esq.,” and he wrote concerning this piece as follows:Wow.(And here I thought the 18th Century was the age of enlightenment, ha ha).
Your comments are well-taken (and well-written). But what I find even more interesting are the implicit assumptions I read into the proposal. In particular, it seems to me the legal profession has a profoundly arrogant view of its clients.
What I see as implicit in advocating such wide-reaching proposals are the ideas that
a. people are incapable of judging legal performance,
b. lawyers are inherently out for no good unless they are restrained,
c. “selling” is a dark art that is inherently manipulative, and
d. when said dark art is in the hands of said evil lawyers, clients are at risk.
Leaving aside the temptation to make jokes based on point b., all of them reflect a view that lawyers have huge influence and clients must be protected from information about them–for their own good, I’m sure. What little faith in the market for services! Somehow people navigate the waters of auto and life insurance; figure out how to express preferences for physicians; manage to hire accountants, and choose spiritual advisors. But an MD is not considered a requirement to select a doctor; lack of a CPA doesn’t keep us from making intelligent assumptions about accountants. In fact, it is precisely our content ignorance as clients which makes us want to hire an expert; if we knew enough to technically evaluate them, we wouldn’t need them in the first place.
This is why a market in free speech, aka sales, is so helpful in selecting professionals. What makes lawyers think that open dialogue, the presentation of the equivalent of “bedside manner,” or the opportunity to see and experience a lawyer as a working human being is somehow a negative? It is, to the contrary, precisely how most of us would prefer to choose a lawyer.
Good practitioners these days are a million miles away from the hustler peddler cartoonish caricatures of old. Clients are perfectly capable of making intelligent, nuanced decisions based on complex assessments of trust, the lawyer’s ability to comprehend the clients’ problems, and ability to manage client expectations while navigating the legal world.
Why deny clients the ability to make up their own mind? Arrogance, no matter what the dressed-up, snooty motives of “it’s for their own good,” is arrogance nonetheless. Clients just want to be free to choose.
First of all, Charlie: Thanks for your insights.And I emphatically chime in: The fundamental philosophical fault with the Neanderthal attitudes so conspicuously on display at the New York State lawyer disciplinary authority is profound distrust of both lawyers and clients, and a lowest-common-denominator assumption that, left to their own devices, these p eople will do self-destructive things. If that’s your approach—what I like to call, “managing for failure”—then disarming everyone in the room is indeed logical.”Clients just want to be free to choose,” indeed. Informed, knowledgeable, rational choice. Can’t we all just be adults here?