Ethics

Noeleen G. Walder, Media Watch, 03-15-2010

In rejecting the bulk of New York's content-based restrictions on attorney advertising, the U.S. Court of Appeals for the Second Circuit today held that a ban on the use of nicknames like "Heavy Hitters" or client testimonials about pending cases violates the First Amendment.

The circuit also held that preventing lawyers from employing special effects or portraying a judge in an ad did not "materially advance" the state's interest in prohibiting misleading speech.

"The speech that Defendants' content-based restrictions seeks to regulate?that which is irrelevant, unverifiable, and non-informational?is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900- cv.

The ruling primarily affirms the July 2007 decision by Northern District Judge Frederick J. Scullin (NYLJ, July 24, 2007) 

The appellate panel disagreed with Judge Scullin in finding that one provision of the rules, which bars ads from portraying a "fictitious law firm" or "the use of a fictitious name to refer to lawyers not associated together in a law firm" was "actually misleading" and not entitled to First Amendment protection.

The panel also upheld a portion of the rules requiring attorneys to wait 30 days after accidents before targeting advertising to solicit personal injury clients.

The rules, which went into effect on Feb. 1, 2007, and are codified in New York's Code of Professional Responsibility at 22 NYCRR §1200, were adopted by the four state Appellate Divisions and challenged by Alexander & Catalano, a Syracuse-based personal injury firm, as well as Public Citizen Inc.

The circuit opinion was written by Judge Guido Calabresi and joined by Judge John M. Walker Jr. Judge Sonia Sotomayor was the third member of the panel before being elevated to the U.S. Supreme Court last year.