NY Advertising Rules Found Unconstitutional By Federal Judge

Breaking news from Public Citizen, which brought a suit to have New York’s new attorney advertising rules held unconstitutional:

PUBLIC CITIZEN PRESS RELEASE

New Lawyer Advertising Rules in New York Violate Free Speech, Federal Court Rules

Public Citizen Wins Injunction Against Unconstitutional Rules

WASHINGTON, D.C. – New rules governing lawyer advertising that took effect in New York on Feb. 1 cannot be enforced because they violate the First Amendment right to free speech, according to a ruling issued today by a federal court in New York.

The U.S. District Court for the Northern District of New York ruled in favor of Public Citizen’s request for an injunction against many of the new rules. The organization represented its members and attorney James L. Alexander and his law firm, Alexander & Catalano. The New York firm was forced to change its advertisements to comply with the more restrictive rules.

The new guidelines were part of a revision of the rules contained in New York’s Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. Public Citizen contended in its lawsuit that the rules’ broad language unconstitutionally prohibited truthful communication of information about legal services to New York consumers. The court heard oral argument on June 18.

In a victory for First Amendment rights, the court permanently enjoined enforcement of most of the challenged rules against attorney advertising, including rules against attention-getting techniques, the use of nicknames and mottos, the use of client testimonials, the portrayal of judges and the use of Internet pop-up ads.

“The New York rules went too far in imposing burdensome restrictions on legal free speech that do not protect consumers,” said Greg Beck, an attorney for Public Citizen who litigated the case. “The court rightly recognized that the First Amendment prevents states from arbitrarily restricting advertising just because some may find it distasteful.”

In today’s ruling, the court held that the advertising at issue in the case was a form of speech protected by the First Amendment, and it categorically rejected New York’s argument that advertising considered by the state to be trivial or irrelevant was not covered by free speech rights. It noted that the state had not produced any evidence that its restrictions on speech were necessary to protect consumers and found that the prohibitions were much broader than necessary to accomplish the state’s claimed objectives.

Public Citizen also challenged the rules’ application to non-commercial speech, such as offers by lawyers to represent clients without a fee in civil rights cases. And in what amounted to another victory for free speech, the court construed the challenged amendments not to apply to nonprofit attorneys.

“The main beneficiaries of this decision are New York consumers,” Beck said. “Truthful advertising promotes healthy competition between lawyers and allows the public to learn about their rights and available legal services.”

To read the decision, visit http://www.citizen.org/documents/alexanderorder.pdf.

To read Public Citizen’s lawsuit and other materials in the case, visit http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=358.

To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project, at http://pubcit.typepad.com/clpblog/advertising/index.html.

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Addendum:

My own couple of thoughts:
The state briefs were very weak, and it comes as no surprise that those portions of the new advertising rules that dealt with the content of the advertisements were struck down. It should be noted, however, that the 30-day rule was upheld, prohibiting solicitations within 30 days of a mass tort. (Edit: Links to many of my pre-decision comments can be found off the first link of this post.)

The court had an interesting footnote at the end of the opinion. Why this was buried in a footnote, however, is beyond me:

In sum, the Court notes that it is altogether appropriate for the Appellate Division of the State of New York, having been charged by law with the responsibility of overseeing the professional conduct of attorneys admitted to practice before the courts of New York, to be concerned with the issue of attorney advertising. Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of he legal profession has been greatly diminished. Although the Court finds it commendable that the Appellate Division of the State of New York and the disciplinary committees that function on its behalf pursue ways to regulate the manner and means by which attorneys who choose to advertise may do so, they must be mindful of the protections such advertising has been afforded and take the necessary steps to see that the regulation of such advertising is accomplished in a manner consistent with established First Amendment jurisprudence.

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2nd Addendum:

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