I wish more authors of ethics opinions would pay attention to the Constitution. But NOOOOO – here’s yet another ethics opinion, this time from the New York County Lawyers’ Association, that completely ignores the fact that the first amendment governs how state attorney advertising rules are to be interpreted.
Instead, NYCLA takes the tack that it can just read the ethics rules and come up with commonsense interpretations of what they mean. That’s cool and all, but it’s also completely meaningless – and not just because NYCLA is a voluntary bar association, and its word on matters of legal ethics is about as authoritative as a Duane Reade shopping bag.
Here’s a tip: if your interpretation of advertising regulations doesn’t account for the Central Hudson factors, this would be a fair criticism of your position:
Oh, and naturally, without the application of First Amendment limits on regulatory overreach, NYCLA ended up at a pretty dumb place: that LinkedIn profiles require disclaimers, that attorneys need to monitor their profiles for accuracy in content added by others, 1, and that attorneys cannot be categorized by others as “specialists.”
That’s pretty much entirely wrong. Disclaimer requirements are a form of compelled speech, enforceable only to the extent necessary to prevent deception. Federal law explicitly holds that users of websites can’t be held responsible for independent postings by third parties. And prohibitions on the use of words like “specialist” only come into play when such words are accompanied by other words stating that some third party has certified the lawyer as a specialist.
So nice opinion there, NYCLA – but you’re not exactly advancing the profession’s understanding of speech regulation.
- Which they SHOULD do, but not due to any regulatory obligation. ↩