Federal Appeals Court’s Affirmation That Most New York Rules on Attorney Advertising Are Unconstitutional Likely to Effect Other States

New York’s Appellate Division adopted new rules prohibiting certain types of attorney advertising and solicitation, which were to take effect February 1, 2007. The new rules barred 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. The amendments also established a thirty-day moratorium for targeted solicitation following a specific incident, including targeted ads on television or in other media.

A New York attorney, along with his law firm and a not-for-profit public interest organization, challenged these provisions as violating the First Amendment. The United States District Court for the Northern District of New York held that the rules were unconstitutional except for the 30-day moratorium for targeted solicitation, 634 F.Supp.2d 239, and the parties appealed. Last month the Second Circuit, in Alexander v. Cahill, — F.3d —-, 2010 WL 842711, affirmed the District Courts findings with one exception. That exception was upholding the ban on lawyers from different firms giving the misleading impression that they are from the same because that attorney advertising techniques is actually misleading and thus is not entitled to First Amendment protection.

The Circuit Court subdivided the rules at issue into two categories. The first group of amendments imposes a series of content-based restrictions:

(c) 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.

The second group of amendments imposes a thirty-day moratorium on certain communications following a personal injury or wrongful death event: Under the Circuit Courts ruling, the bans contained in subdivision (3) regarding the portrayal of a judge and the portrayal of a fictitious law firm may be used so long as there is no representation that the lawyers are associated together in a law firm.

For example, the court specifically observed: we need not decide whether it would be constitutional to prohibit dramatizations in which an advertising law firm portrays itself arguing against a fictitious opposing counsel. It remains to be seen how and if this ruling will impact attorney advertising restrictions in other states. In Florida, for instance, there is much ado about the change in the rules such that attorney websites are no longer regarded as not being in the same category as advertising. Law firm Web sites were considered to be information provided upon request, – the thinking was that Internet visitors actively and consciously sought out law firm sites rather than just happening to them.

Beginning July 1, 2010, pursuant to Rule 4-7.2 (“Communications Concerning a Lawyer’s Services, a law firm’s Web site cannot:

Contain factually unsubstantiated information; Contain any reference to past successes or results obtained; Promise results; Compare the lawyers services with other lawyers services, unless the comparison can be factually substantiated; Contain a testimonial; Make statements describing or characterizing the quality of the lawyers services in advertisements and unsolicited written communications (i.e., “the best,” “one of the best,” “most experienced,” etc.); Include any visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events that are deceptive, misleading, manipulative, or likely to confuse the viewer; Advertise for legal employment in an area of practice in which the advertising lawyer or law firm does not currently practice law; Make any statement that directly or impliedly indicates that the Web site has received any kind of approval from The Florida Bar; or State or imply that any lawyer in the firm (and therefore listed on the site) is “certified,” “board certified,” a “specialist,” or an “expert” except as allowed by the Rule.

One good thing – pages of individual lawyers on social networking and video sharing sites that are used solely for social purposes, to maintain social contact with family and close friends, are not subject to the lawyer advertising rules. However, pages appearing on networking sites that are used to promote the lawyer or law firms practice are subject to the lawyer advertising rules. But there are lots of rules, and it would be surprising if not a single lawyer were to challenge their constitutionality. The success in New York will not likely be limited to that State.

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