Big Law will have their websites before a federal judge in the controversy over New York’s new ethics rules. This results from a lawsuit filed by Public Citizen and an upstate New York personal injury law firm that advertises heavily as the “heavy hitters,” for a preliminary injunction against the rules. The court will be challenged due to the vagueness of the rules, as well as the problem of selective enforcement on attorneys depending on their area of practice
One of the issues before the court is this provision, that prohibits:
“techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence.” 22 NYCRR 1200.6(c)(5)1
Thus, the issue is not simply ads in poor taste, but rather, any attention getting technique. I had addressed this problem previously on January 24th with, Is My Family Photograph An Ethical Violation in New York? Since virtually every graphic or photograph on a law firm’s web site is “unrelated to legal competence,” the rule is utterly vague as to what is actually forbidden, thereby raising constitutional conflicts.
The following law firms have now had their website cited in this complaint as potentially being in violation of the attorney advertising rules (in the order they appear in the brief):
- Skadden, Arps, Slate, Meagher & Flom (for displaying a dramatic red design scheme, photographs, and animation);
- Sullivan & Cromwell (featuring a picture of a mountain);
- Davis Polk & Wardwell (featuring depictions of moving people as blurs);
- Blank Rome (displaying flashing photographs suggesting competence, including gymnasts flying through the air, chess pawns, and a $5,000 bill)
It is not just vagueness that is at issue. Plaintiffs’ brief, citing to Judge Eugene Pigott — who had been one of the presiding justices that formulated the rules and has now been elevated to New York’s Court of Appeals — conceded that the rules were not intended to be applied uniformly:
Indeed, Justice Pigott, in his public comments about the rules, acknowledged that the presiding justices had not considered how some of the rules would be applied to “the big firms in New York,” noting that “[w]e’re thinking about the ads that you and I see at night.” Although Justice Pigott claimed that the rules do not “target any area of practice,” he admitted that it was only “very limited areas of practice” that he was concerned with in adopting the amendments and that it was “obvious to all of us the areas that seem to attract the most egregious ads.”
As set forth succinctly in the brief:
Due process prohibits vague regulations for two interrelated reasons: (1) to provide fair notice so that individuals may steer clear of unlawful conduct, and (2) to provide explicit standards to authorities to prevent arbitrary and discriminatory enforcement.
It should be noted that prior to the new rules that went into effect on February 1st, New York already had rules against false and misleading advertising. According to a New York State Bar Association report cited in plaintiffs’ brief, about 1/3 of randomly selected ads were in violation. The problem was a lack of enforcement. But instead of additional enforcement, yet more rules were made, even more unenforceable than the prior ones.
It seems that New York’s judiciary wants to prohibit ads that are in bad taste, but has well exceeded such a goal. And while that may be a laudable objective to many, actually defining it is another matter. The new rules simply seem to be another version of the vague, “I know it when I see it.”
(copy of brief via Sui Generis)
- Consumer Law & Policy Blog (Public Citizen)
- New York State Bar Association (with a blacklined copy of the rule changes)
- Rudy Giuliani Finally Complies With New York Ethics Rule (this blog, with additional links)