Saturday, September 30, 2006

Do I Violate New York State's Proposed New Professional Conduct Rules?

The Disclaimer.

The full extent of my knowledge about New York law is based on a set of circumstances that occurred a long time ago when the unfortunate Mrs. Palsgraf was injured after employees of the Long Island Railroad Company pushed and pulled a man onto a train, causing his apparently harmless package to fall—a package that in fact contained fireworks—setting off an explosion, and thereby knocking down scales at the other end of the platform, onto the said Mrs. Palsgraf. This knowledge does not qualify me to write about legal matters in New York.

The Fuss.

Those who make the rules about lawyer’s professional responsibility in New York are proposing some changes, which no doubt they are entitled to do. One of the problems with their proposed changes is that if adopted the advertising rules arguably apply to any lawyer in the world who has a website or blog on legal matters. This is because computer-accessed communications fall within the definition of advertising. Furthermore, the proposed changes purport to give New York disciplinary authority over any lawyer outside of New York who “provides or solicits any legal services” in New York.

I don’t know if this would catch my blog. I don’t think of anything I do on my blog as “soliciting” legal services, and I don't direct my blog specifically toward New Yorkers. On the other hand, I admit that I use my blog to market my practice (although that is only one of the reasons I this write this blog). Nor am I vehemently opposed to New Yorkers retaining me in respect of legal issues in British Columbia.

What have they got against courthouses in New York State?

As, Larry Stratton, in his blog, Planner’s Thoughts, points out in his post "Take that, New York," one of the no no’s in New York’s proposed new rules is depicting a courtroom or courthouse in an advertisement. This is what gets me in trouble. I have, as at the date of this post, eighteen photographs and one sketch of courthouses. (I may have more by the time you click the link.)

I can understand why those who are concerned with the legal profession’s image might not be enamored by advertisements for lawyers that depict apparently vicious animals. I am not a particularly big fan of advertisements with pictures of car accidents, hospitals and ambulances (although I wouldn’t ban them). But courthouses?

To me a courthouse symbolizes the fact that in places governed by the rule of law we try to settle disputes rationally according to rules and evidence, and not out on the streets according to might. Courthouses symbolize law and justice. They symbolize respect for the rights of the individual, and they symbolize the community. They also symbolize my profession.

I decided to put pictures of courthouses on my blog to give it a little color and variety. It gives me a wedge to write posts on cities and towns, or other matters, on a law blog. I can’t imagine that depicting a courthouse on this blog, or on any advertisement, could possibly affect my business one way or the other.

Sorry New York professional legal ethics people, but I just don’t get it.

And Mrs. Palsgraf?

She lost her suit against the Long Island Railroad Company on appeal. Chief Judge Cardozo, for the majority, held that if the employees were negligent in respect of the man they tried to help onto the train, their conduct was not negligent in relation to Mrs. Palsgraf. There was nothing in the circumstances that would indicate to the employees that their conduct could harm Mrs. Palsgraf.


When I decided to write this post, I remembered the Palsgraf case from law school twenty years ago, but thought it would be wise to re-read the case before mentioning it. I googled “Palsgraf,” and I found the decision in Palsgraf v. Long Island Railway Company, 248 NY 339, on the Historical Society of the Courts of the State of New York website. The website has a nice section, with photographs, of New York courthouses here. Ironic.

Will links to other blogs or websites that depict courthouses be ok in New York if the proposed new rules are adopted?

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