Archive for the ‘Alexander v. Cahill’ Category

Supreme Court Kills New York’s “New” Attorney Advertising Rules

Yesterday, the United States Supreme Court put the final nail in the coffin of New York’s “new” attorney disciplinary rules regarding advertising when it refused to review a Second Circuit decision that struck most of the rules. I put “new” in quotes because they actually date to February 1, 2007, just months after I opened this little blog.

And I’ve been following the issue ever since. See January, 5, 2007;  New Attorney Advertising Rules (Is This Blog an Advertisement?)

Most of the rules were first  struck down by the U.S. District Court in July 2007 when challenged by Public Citizen on behalf of the upstate firm of Alexander & Catalano. And the Second Circuit upheld those determinations in April of this year. (Sonia Sotomayor was on the panel that heard the case, but had gone to the Supreme Court by the time the decision came down.)

Those broad-based rules tried to stop a variety of advertising techniques, but did so in a fashion that ran headlong into the First Amendment. The rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.

As I pointed out in one of my first posts, simply putting a picture of yourself on a lawfirm website could be construed as violating the prohibition against “characteristics clearly unrelated to legal competence.” The picture will tell the potential client your age, your race and your sex, but what will it tell them about legal competence? Nada. Ergo, under the new rules the photo could be a violation.

Obviously, this wasn’t why the rules were crafted. They came in response to the embarrassing aftermath of the October 2003 Staten Island Ferry disaster that killed 11, and the onslaught of ads in the Staten Island Advance the next day. Those ads were placed while rescue efforts were still ongoing at the ferry that day. It was not one of the better moments of the personal injury bar. And that incident brought about New York’s 30 day anti-solicitation rule, part of the new set of rules but one which was not affected by this ruling.

But the new rules went after problems that didn’t just have to do with 30 day time limits.

Senior Judge Frederick J. Scullin, who wrote the District Court opinion striking down almost all the other rules, summed up the problem this way in a buried footnote on page 29 of his decision:

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.

But in re-crafting rules in an attempt to solve this problem, the crafters went way too far. So far, in fact, that the only way to defend them was to assert that attorneys couldn’t use humor.

For it was humor that formed part of the basis of the state’s response to the Alexander & Catalano lawsuit. AS described the by state in one of its filings, the firm advertised that it:

retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.

And the argument by the state against this? That it wasn’t truthful. SeeNew York Responds to Lawsuit Challenging New Attorney Advertising Rules — By Banning Humor

When I read the state’s brief, that I discussed at some length in that post, I knew the rules were toast.

While the ads may have been tasteless and embarrassing to the profession, no person with a functioning brain could have believed that the firm had actually been retained by aliens or done any of the other eye-catching things in those commercials.

And so the First Amendment ruled the day, as the rules over reached to ban more than just dishonesty.

Now I sure as hell wouldn’t want to pick a jury in any courtroom if my firm was busy running such moronic ads, but taste is not something that can be regulated.

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See also on the Supreme Court’s action:

SCOTUS Gives Nod to 2nd Circuit OK of ‘Heavy Hitters’ Law Firm Slogan & Descriptive Trade Names (ABA Journal)

US Supreme Court to New York Lawyers: You Are Awesome (Tannebaum @ My Law License)

Supreme Court Denies Certiorari in Lawyer Advertising Case (Robson @ Constitutional Law Prof Blog)

Good News for ‘Heavy Hitters’: High Court Sidesteps Lawyer Advertising Dispute (Koppel @ WSJ Law Blog)

Is an April Fool’s Joke an Ethical Violation?


Just when I thought I’d put the April Fool’s fun behind me — and started to plot next year’s prank — comes this little nugget:

April Fool’s Day Isn’t For Everybody: Once again, Ethics Alarms will declare that it is irresponsible for anyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun” … yes, even on April 1. 

Who the heck is this blogger and why is he such a killjoy? And more importantly, does his argument have even a grain of merit?

The blog is Ethics Alarms and appears to be the work of Jack Marshall, who claims to run an ethics consulting firm in Alexandria, VA and mixes seminars with music and theatre. Marshall, it seems, had me in mind for his posting. The giveaway was that he used my name. Let’s explore the post further:

Eric Turkewitz, a New York lawyer, has an astounding post on his blog ridiculing the New York Times ( as well as some blogs and websites) for believing and reporting his fake announcement that he had been appointed the official White House law blogger. 

Well, I’m flattered he thought it was astounding. But there was no ridicule for blogs and websites (plural); only for the New York Times. And the ridicule was earned because the paper failed to do a simple fact check of its story. They didn’t even bother to call me until hours after it was posted, when they realized they’d been had. While the WSJ reporter was initially taken in by the joke, he didn’t write about the hoax until after he’d phoned both me and the White House. He did his job.

But let’s cut to the ethics part because, while I understand that some don’t like April Fool’s jokes, the issue of ethics is more important than the issue of whether such pranks are your cup of tea:

…lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct, 

Rule 8.4? OK, let’s run that one down. Rule 8.4(c) states that “A lawyer or lawfirm shall not…engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Marshall claims that there is no exception for humor. I disagree. More importantly, I believe that the courts will stand behind me. And that is based on the recent legal battle over New York’s 2007 amendments to our attorney ethics rules in Alexander v Cahill. As it happens, I’ve written plenty of posts about this ongoing legal struggle over what can, and cannot be used in legal advertising.

And one of the things that the court had to decide was whether deliberate misrepresentations by a lawfirm were ethical when done with humor to make a point.

In Alexander v. Cahill, the State of New York took aim at the ads of Alexander & Catalano, as they claimed, among other things:

  • Lawyers being retained by aliens;
  • Lawyers having the ability to leap tall buildings in a single bound;
  • Lawyers stomping around downtown Syracuse, Godzilla-style.

The State Attorney General claimed the ads were unethical because they were literally false. They actually made this argument (not on April 1st) and you can read the State’s brief if you want. (My tax dollars at work, thank you very much.)

But the ads were upheld by the District Court when the rules were found unconstitutional, and more importantly, upheld again by the Second Circuit when it likewise found the rules unconstitutional. It was all about First Amendment protections of free speech.

The Second Circuit wrote that the use of humor was not only OK, even if a false portrayal took place, but that it might actually be beneficial in some circumstances:

Moreover, the sorts of gimmicks that this rule appears designed to reach — such as Alexander & Catalano’s wisps of smoke, blue electrical currents, and special effects — do not actually seem likely to mislead. It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client’s house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens. But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe — purely as a matter of “common sense” — that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics. Indeed, some of these gimmicks, while seemingly irrelevant, may actually serve “important communicative functions: [they] attract[] the attention of the audience to the advertiser’s message, and [they] may also serve to impart information directly.” 

So now we turn to blogs. Would a court rule that blogs such as this one are an advertisement to gain clients, or non-commercial speech? In our analysis, it wouldn’t matter. Though restrictions on speech are greater for commercial speech than non-commercial, the use of humor (even with false depictions) has already been upheld in the stricter (commercial) setting. An April Fool’s prank that can be immediately debunked with a single phone call or email is not one that could hold up for more than a day and not one that could be taken seriously.

Moving one step further along, though it really isn’t necessary, the April Fool’s hoax has a role in social commentary in that it was designed to root out people that act on a serious news story without fact checking. I wasn’t expecting The Times to fall for it, of course, but I did think that others would and that there was a good point to be made about people rushing to fall for stories, even on a day when they should be on the lookout for such things.

Thus, Rule 8.4 cannot be read in a vacuum. The claim by Marshall that “there is no April Fool’s Day exception” would seem to be pretty clearly wrong. There is an exception, and it’s called the First Amendment.

So, leaving aside the easy responses one might have to those that would criticize an April Fool’s prank such as the one I pulled with my co-conspirators, it would seem that, on the law, the First Amendment rules the day.

And the rules also wouldn’t apply here because the hoax wasn’t pulled in conjunction with the representation of any client. Thus, if you make the April Fool’s joke an ethical violation, then so too are misrepresentations surrounding surprise parties, Santa Claus and The Tooth Fairy.

Two final notes: First, the jester in the photo is me, circa 1995. Sorry I couldn’t find a photo with a clown nose. Second, same time next year?

(No clients were hurt in the perpetration of this hoax.)

2nd Circuit Rejects Most of New York’s Attorney Advertising Rules

The case concerning the constitutionality of New York’s attorney advertising rules was argued over a year ago. And Sonia Sotomayor was on the the panel. Now she has gone up and the decision has come down by the two remaining judges of the panel regarding the rules that went into effect on February 1, 2007.

And the 2nd Circuit has upheld the lower court decision in holding that most of the content-based rules violate the First Amendment. A separate section, regarding a 30-day anti-solicitation rule, was upheld both in the court below as well as in the 2nd Circuit.

The decision is here: /Alexander-v-Cahill-2ndCirc.pdf. The case was brought by Public Citizen on behalf of upstate firm Alexander & Catalano. (Addendum: NY Lawyer Rules Are Unconstitutional)


The new rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results. I had previously criticized some of those rules on First Amendment grounds.

The lower court had dumped those rules. The only part of the lower court’s decision that changes is the prohibition on portrayals of fictitious law firms, and that is just a minor modification.

These were the content based restrictions:

An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .
(5) rely on 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 . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.

Those rules, however, can result in some bizarre results if they were implemented. For instance, an attorney’s photograph on a web site clearly has no relevance to the legal competence of the individual. So if it has no bearing on competence, is it prohibited? (See: Is My Family Photograph An Ethical Violation in New York? and New York’s New Attorney Ad Rules and First Amendment Issues)

The catch-all prohibitions on false and misleading advertising remain in place.

Moving to the 30-day rule, of particular interest is that part of the decision regarding targeted Internet ads. Even before the plane crash in Buffalo last year, I had discussed the myriad ways that savvy marketers might try to circumvent the 30-day rules by targeting the victims with Internet ads and websites, instead of the more traditional types of ambulance chasing, in a post titled Solicitation 2.0. I followed up after the Buffalo crash showing how Google ads and websites were being used (this post has a round-up of numerous posts I did on the subject)

Anecdotal evidence that I collected showed that the 30-day rule was effective in curbing chasing.

So from the opinion comes this:

[W]e conclude that ads targeting certain accident victims that are sent by television, radio, newspapers, or the Internet are more similar to direct-mail solicitations, which can properly be prohibited within a limited time frame, than to “an untargeted letter mailed to society at large,” which “involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession” as direct mail solicitations.

New York’s moratorium permits attorneys to advertise to the general public their expertise with personal injury or wrongful death claims. It thereby fosters reaching the accident victims, so long as these victims are not specifically targeted.

It’s a big victory for the First Amendment. But with that will also come more lawyer tasteless ads that embarrass the profession.

hat tip: New York Law Journal

Updated: More coming in:
Lawyer Free Speech Given a Second Chance (Greenfield @ Simple Justice):

As much as I believe that flagrant marketing is distasteful and unprofessional, bad for the profession and part of our race for the bottom, that doesn’t mean that I support legal restrictions or prohibitions. The former is bad. The latter is worse.

New York Advertising Rules Held Unconstitutional (Sorensen @ The Ethical Quandary):

So let’s recap: William Shatner in a judge’s robe? Allowed. Fifty foot lawyers terrorizing Midtown Manhattan? Allowed.

Jim “The Hammer” Shapiro apologizing that he cannot “rip out the hearts of those of have hurt you”? Ok that last one was a trick — already allowed: http://www.youtube.com/watch?v=Q5hn8bhEpMY — but good idea? Maybe that is the better question.

New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified


New York’s 2007 lawyer advertising rules will be before the Second Circuit today (NYLJ: 2nd Circuit to Hear Arguments on Lawyer Ad Restrictions). In 2007, many of the restrictions had been struck down by a federal judge in Alexander & Catalano v. Cahill, though one particular restriction — the 30-day anti-solicitation rule — was upheld. (Decision and briefs here)

This posting discusses how the anti-solicitation rule can be circumvented and why it causes First Amendment problems in certain circumstances due to the breadth of its definition of solicitation. Indeed, under the rules, this very posting could qualify as an ethical violation as I use the US Airways Flight 1549 splash landing in the Hudson River as a case example on how the solicitations can occur. In fact, the ethics rule is so full of holes that it would sink in a true disaster.

An Internet savvy lawyer may try to beat the rules by making agreements with legal marketers from outside New York. I refer to the work-arounds as Ethics Laundering, for the reasons that follow. If New York wants its anti-solicitation rules to have any real effect, it will have to more fully appreciate how the Internet has altered the field of attorney marketing, how the ethics rule might be laundered, how they may violate the First Amendment, and deal with it appropriately.

By way of background, the 30-day rule came into being in the wake of the 2003 Staten Island Ferry disaster that killed 11 people. While rescue efforts were still underway, lawyers raced to the Staten Island Advance to place ads in the paper before the afternoon deadline for the next day’s paper. It was not the personal injury bar’s most shining moment.

The new anti-solicitation rules, which cover more than mass disasters but that seems to be where the real problem lies for online solicitation, went into effect on February 1, 2007 after a period of comment. Here’s the text:

DR 7-111 (22 NYCRR 1200.41-a) Communication After Incidents Involving Personal Injury or Wrongful Death

(a) In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, seeking to represent the injured individual or legal representative thereof in potential litigation or in a proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

The easiest place to start analysis of how the rule works is with direct solicitation, and then work through several examples of the more troublesome indirect solicitation that serve to launder the ethics involved. While direct solicitation has, in the past, generally dealt with direct mail, this positing will deal solely with Internet related marketing.

Bear in mind that, because no lives were lost on the US Airways crash, and because a flock of birds seems to be the leading cause, we were not swamped with ads. Thus, this piece is written in advance of the full implementation of the rule, while the matter is pending in the Second Circuit, with the hope that the rule can be modified to take these devices into account.

First, direct solicitation can take place with simple Google AdWords. Those are the ubiquitous ads you see on top of the natural search results or in the right hand side bar when you Google “personal injury lawyer” or most any other service or product known to the human race. People and companies, working through Google, submit words or phrases that will trigger the ad. Those keywords don’t have to be part of the ad. For instance, a generic personal injury ad may run, but there may be hundreds of keywords that trigger it regarding medical malpractice, drug interactions, car or labor law accidents, etc. Where you land in the advertising results, be it in the first position on the first page or buried on page three, depends on how much you bid for the particular keywords you used.

So in the wake of the Hudson River crash, I searched around and found one firm that seemed to blatantly violate the ethics rule, according to my reading, by actually using these words in addition to the firm’s website link:

USAirways Crash Victim?
Helping Victims of Flight 1549
[Law firm link redacted]

But not all such solicitation is so obvious. How about the firm that uses the keywords “Hudson River” and “1549″ to get placement of their aviation law firm in the Google results, but doesn’t mention the particular accident in the ad that the public sees? In this manner, law firm marketers get their ads placed under the noses of searching victims in violation of the rule, but without making it obvious. Catching these people requires someone actively looking for the violations by ignoring obvious keywords (aviation, airline, attorney, etc.), and then subpoenaing Google to get the list of keywords from the lawyer’s account.

Another trick is to simply modify the website of a firm and lard it with keywords for Google to index. Is that a solicitation in violation of DR-711? According to Ethical Consideration (EC) 2-18 of the rules:

A “solicitation” means any advertisement:
a) which is initiated by a lawyer or law firm (as opposed to a communication made in response to an inquiry initiated by a potential client);
b) with a primary purpose of persuading recipients to retain the lawyer or law firm (as opposed to providing educational information about the law) (see EC 2-6(c));
c) which has as a significant motive for the lawyer to make money (as opposed to a public interest lawyer offering pro bono services); and
d) which is directed to or targeted at a specific recipient or group of recipients, or their family members or legal representatives. (emphasis added)

Does the act of adding the text of the accident to an existing website mean that it is an ad “directed to or targeted” at the victim group? It would seem so, since the definition of “directed to or targeted” means that it is referring to the target group. The definitional text for the phrase is under Ethical Consideration (EC) 2-19(c):

“…an advertisement in a public medium such as newspapers, television, billboards, web sites or the like is a solicitation if it makes reference to a specific person or group of people whose legal needs arise out of a specific incident to which the advertisement explicitly refers.”

If all one needs to do is “make reference” to an accident, then it seems to create a troubling constitutional issue. What is to stop a firm from putting an “in the news” on its web site that deals with Flight 1549 (or a big construction accident or other event) that just so happens to tickle the magic Googlebots with the “correct” keywords for the victims to find them? The result, it seems, would be a clear First Amendment battle.

The same issue may exist for a blogger who writes about local accidents in the hope that someone will Google the accident and find the firm (see: Attorney Solicitation 2.0 — Is it Ethical?). While this can be a very crude and obvious device, it nevertheless also runs into the same First Amendment issue. Even a subtle mention of the accident — I did make reference to US Airways flight 1549 in this article didn’t I? — might trigger the rule in the eyes of some. There are a million shades of gray between the obvious and the subtle in determining which blogger is trying to add to the discussion of an issue and which one is hustling business.

The solution here may be well beyond anything that the courts can do by way of ethical rules due to constitutional constraints. It thus becomes up to writers to speak up when they see these things happen in the hope that public humiliation will stop the conduct, as the implied threat of destruction to one’s Google reputation can be a powerful incentive in the digital age. While the briefs and lower court opinion in today’s case didn’t go into the level of detail I have here, one can clearly see how the rule may not be workable.

Now moving on to the more secretive and, I think, insidious types of advertising: The attorney search services. These are web sites that are not affiliated with any one law firm, with charming names like WhoCanISue and SueEasy, that run ads trying to attract potential clients. Leads are then distributed by the company to attorneys, whose names do not appear anywhere on the website. There are dozens of these companies out there, and I regularly get calls and emails from them. One called PleaseGetMeAnAttorney, for example, sent me an unsolicited email that offered to provide leads at “$3,995.00 per territory, per month.”

These attorney search services are particularly diabolical from the ethics standpoint. They are unlikely to have their home in New York and may not even be run by attorneys. They therefore will fall well outside any jurisdiction that New York courts may have to discipline for ethics violations. They can advertise free from any constraints and may skate right off the edges of the ethical pond. But what of the attorneys that have signed up with them? They, no doubt, turn a blind eye to the devices used by the companies and will cry ignorance if confronted.

And very similar to the attorney search services are the “national” law firms that are little more than referral mills. They seek to sign up clients the same way the attorney search services do, but instead of getting paid a flat fee for leads they will receive a piece of the legal fee if the matter successful, as part of a joint venture with local counsel.

How, exactly, is New York going to stop these outside lawyers and search services from soliciting in New York and laundering the ethical rules that local counsel must abide by? Well these outsiders are theoretically subject to New York’s anti-solicitation rule under EC-221:

Extra-Territorial Application of Solicitation Rules

EC 2-21 All of the special solicitation rules, including the special 30 day (or 15 day) rule, apply to solicitations directed to recipients in New York, whether made by a lawyer admitted in New York or a lawyer admitted in any another jurisdiction.

But if the Second Circuit upholds the constitutionality of the 30-day rule, how will enforcement actually take place for the attorney that is not admitted in New York? And has a New York lawyer committed a violation by accepting the case from the outsider that violated the rules? And how is the New York lawyer supposed to know that the out-of-state referring lawyer or search company violated the ethics rules?

I suggest that the Office of Court Administration use the Retainer Statements to catch the ethical launderers. Those statements, that must be filed in every personal injury case taken on contingency, require the retained lawyer to specify who the referring sources are, be they attorneys or not. In the event of a tragedy that triggers the rule, OCA must anticipate the problem and do an immediate web search to see who is violating the rules, then cross-check that list against the incoming Retainer Statements. The rules must be clear now that, if the referring lawyer or service violated the anti-solicitation rule, then the matter will be forwarded to the disciplinary committee.

There should be little doubt that search services, as well as non-New York Lawyers that solicit here for the purpose of entering into joint ventures with local counsel, are agents of the law firms and that local counsel must therefore be accountable for the acts of these agents. For only by forcing accountability on local counsel will they, in turn, demand ethical conduct from the search company or New York outsiders. If local counsel understands that they may lose their fee after having done substantial work, they will more than think twice about whom they do business with.

This is not, by any means, a plea to get rid of the 30-day anti-solicitation rule altogether. Solicitation is ugly and a blight on the profession. Rather, it is a plea to clean the rule up, either before or after the Second Circuit decides, and make it clear that attempts to circumvent the rule by laundering the ethical issues will not be tolerated. And that is something that should be done now, and not after a real disaster.
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Photo credit: Jordan Husney (via Flickr)
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Update 1/23/09, After the Second Circuit Argument: 2nd Circuit Skeptical Over Restoration of Rules Curbing Content of Ads (NYLJ via Law.com)

Links to this post:

I’ll Take Turkewitz on Ethics Over Jack Marshall Any Day of the Week
Over at his sparsely populated and impossible to navigate blog Ethics Alarm, American University Washington College of Law adjunct ethics professor Jack Marshall accuses wildly popular New York Personal Injury Law Attorney Law blogger

posted by Carolyn Elefant @ April 05, 2010 12:36 PM

why the devil’s in the details of ethics rules when you start a
i’d love to be able to share the specifics about how to start and run a law firm for every jurisdiction in the country. in part, that was the reason behind myshingle’s the bars, reviewed which summarizes the benefits for solos and small

posted by loce@his.com (Carolyn Elefant) @ March 17, 2009 10:41 PM

february 3 roundup
lawyer charged with particularly awful pattern of thefts from disabled/incapacitated persons [nytimes, steven rondos]; “buy american” provisions in stimulus bill could start trade war [postrel]. parting blow to america’s taste buds:

posted by Walter Olson @ February 03, 2009 1:11 PM

mortimer, morden, and miracles
a few “quickies” that took too long to write this saturday morning afternoon: thank you, john mortimer, for creating rumpole: as today’s new york times reports, “john mortimer, barrister and writer who created rumpole, dies at 85” (jan.
posted by David Giacalone @ January 17, 2009 1:25 PM

NYS To Appeal Decision Ruling Atty Advertising Rules Unconstitutional

Just one day after a federal judge ruled large parts of New York’s new attorney advertising rules unconstitutional, the State of New York has said it will appeal. Given what I thought were some particularly empty arguments in the briefs by the State, as opposed to those raised by Public Citizen on behalf of itself and an upstate law firm, I find this surprising.

In a squib in today’s New York Law Journal:

Court System Seeks to Appeal Ruling Faulting Some Ad Rules

The state will appeal a federal judge’s ruling that some new attorney advertising rules violate lawyers’ free speech rights. Michael Colodner, counsel to Chief Administrative Judge Ann T. Pfau, said yesterday that court administrators have asked Attorney General Andrew Cuomo to appeal Northern District Judge Frederick J. Scullin’s decision in Alexander & Catalano v. Cahill, 07 Civ. 117 (NYLJ, July 24). Mr. Colodner said Mr. Cuomo’s office will also be asked to move for a stay of a permanent injunction Judge Scullin issued prohibiting the enforcement of portions of the advertising rules he found unconstitutional. The rules, unveiled by the four presiding Appellate Division justices last June and which took effect Feb. 1, are designed to dignify advertisements by lawyers and to prohibit them from promising to deliver monetarily for clients. Judge Scullin ruled the state had failed to show that barring more flamboyant advertising, such as that done by attorneys who dub themselves ‘heavy hitters,’ would protect the public from misleading attorney promotions. He also observed that less restrictive steps like adding disclaimers at the end of ads might be just as effective as blanket prohibitions of certain kinds of content in the advertisements. New York State Bar Association President Kathryn Grant Madigan said in a statement yesterday that the group agrees with Judge Scullin and wants to work with the appellate divisions to ‘develop rules that strike an appropriate balance within the constitutional framework.’

See also:

Nicole Black at Sui Generis has a huge number of blog postings on this subject going back to June 15, 2006, which can be found at this link: NY Lawyer Advertising Rules.

Greg Beck, the lead lawyer at at Public Citizen that handled the matter, wrote this up the other day, at this link: New York’s Attorney Advertising Rules Held Unconstitutional

Some of my own blog postings on the subject follow, for those that want more:


Addendum 7/27/07
- Upset of Few Attorney Advertising Rules Could Signal Return of ‘Heavy Hitters’ (NY Law Journal via Law.com)

(Eric Turkewitz is a personal injury attorney in New York)

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:

More blogs/news on the subject:

New York Attorney Advertising Rules – Update


According to Greg Beck of Public Citizen, they have filed their responsive brief on behalf of the plaintiffs in the lawsuit regarding New York’s new advertising rules for attorneys. Initial briefs can be found here (along with other links) from my update last week. The Public Citizen response can be found here: ResponseMemorandum.pdf (There was no responsive brief from the State.)

The central argument of the plaintiffs is that restrictions on commercial speech cannot be upheld without evidence that the restrictions alleviate real dangers, and that less restrictive options are not available.

In the past, I have discussed the vagueness of some of the rules with respect to New York attorney websites, so I found this particular piece of the response interesting:

The rules do not define a “technique[] to obtain attention” or explain what sorts of techniques are “relevan[t] to the selection of counsel.” Nor do they provide any guidance as to what lawyer characteristics are deemed to be “unrelated to legal competence” or what sorts of statements “impl[y] an ability to obtain results in a matter.” The rules, by their plain language, are so broad in scope as to cover essentially every advertisement ever used by an attorney beyond a business card, letterhead, or resume. Because all advertising will potentially be banned, bar authorities will be able to pursue enforcement against any attorneys whose advertisements they find personally distasteful, while ignoring most other ads. Unfettered discretion to distinguish among different speakers invites arbitrary enforcement and inevitably chills free speech rights. Moreover, in the absence of clear guidelines, attorneys will not know how to comply.

I still don’t know the answer to this question I posed on January 24, 2007: Is My Family Photograph An Ethical Violation in New York?

New York Advertising Rules – Update on Lawsuit


The trial has been cancelled for the lawsuit started over New York’s new attorney advertising rules that went into effect on June 1, 2007. According to Greg Beck, who has been litigating this matter for Public Citizen:

We had a trial scheduled on June 18, but since then we agreed that there were no disputed facts and cross moved for summary judgment. We have oral argument on June 18 instead of trial. We also have our [preliminary injunction] motion still pending, and there’s a good chance the judge will at least rule on that, if not on the summary judgment motion, on June 18th….

Opening briefs are attached along with stipulated facts. Response briefs are due Friday.

Prior posts on the subject can be found here:

Addendum 5/29/07: A responsive brief by Public Citizen has now been posted here.


New York Attorney Advertising Suit To Go To Trial

After oral argument on Friday, Northern District Judge Frederick J. Scullin Jr., sitting in Syracuse, ruled against the New York Attorney General’s motion to dismiss this First Amendment lawsuit. He set June 18 for the beginning of a trial on the constitutionality of the state’s new guidelines on attorney advertising. Public Citizen brought the action on behalf of itself and an upstate law firm that advertises heavily.

(hat tip to Andrew Bluestone, New York Attorney Malpractice Blog)

For more on the issue, including copies of the briefs:

New York Attorney Advertising Lawsuit — Reply Brief

The reply brief was filed regarding the lawsuit challenging New York’s new advertising rules for attorneys. A copy of the brief by Public Citizen is here:Reply.pdf

I previously covered the opposition brief filed by New York’s Attorney General here: New York Responds to Lawsuit Challenging New Attorney Advertising Rules — By Banning Humor

The issue I had written on was the vagueness of the rules, and that even a simple family photograph could be viewed as a violation, and I had remarked that the State had failed to address the issue of vagueness. This is how Public Citizen responded:

Defendants Do Not Dispute That the Rules Are Unconstitutionally Vague and Thus Invite Arbitrary Enforcement.

Defendants do not respond to plaintiffs’ argument that the rules are too vague to give adequate guidance to those seeking to avoid discipline and to prevent arbitrary enforcement. See Pls.’ Mem. at 15-17. As explained in plaintiffs’ opening memorandum, the rules do not define a “technique[] to obtain attention” or explain what sorts of techniques are “relevan[t] to the selection of counsel.” Id. Nor do they provide any guidance as to what lawyer characteristics are deemed to be “unrelated to legal competence” or what sorts of statements “impl[y] an ability to obtain results in a matter.” The vagueness of the rules creates a risk of self-censorship and arbitrary enforcement that cannot be tolerated under the First Amendment. Id. For this independent reason, the validity of which defendants effectively acknowledge, the amended rules are unconstitutional.

Additional links are at my prior posts linked above.