f/k/a . . . the archives

July 23, 2007

federal court decimates NY lawyer ad rules

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 4:31 pm

We interrupt our punditry hiatus momentarily to report that Public Citizen has achieved a major victory against the stupendously silly and over-reaching New York state lawyer advertising rules, which went into effect on Feb. 1, 2007 (see our prior post for a description of the rules and links). In Alexander v. Cahill (Mem. Decision & Order, 30-pp, pdf., USNDNY, Dkt. 5:07-CV-117, July 20, 2007), Senior Federal District Judge Frederick J. Scullin, Jr., specifically rejected New York’s bald assertion that it “could ban attorney advertising that was ‘irrelevant, unverifiable, [and] non-informational’” without reference to the Supreme Court’s Central Hudson test for the regulation of commercial speech.

honest! The Alexander court enjoined enforcement of provisions that would “prohibit attorney advertisements from containing endorsements and testimonials about matters still pending, portrayals of judges, techniques to obtain attention that lack relevance to selecting counsel, portrayals of attorneys with characteristics unrelated to legal competence, and use of a nickname, moniker, motto, or trade name that implies an ability to obtain results in a matter.” It also struck down a ban on pop-up and pop-under internet ads, and held that the rules would not be construed to apply to non-commercial speech (by not-for-profit attorneys).

Congratulations to the Public Citizen team, which included Brian Wolfman, Gregory Beck and Scott Nelson. Beck reports on the victory this afternoon at Consumer Law & Policy Blog. Let’s hope the many other states (see our post) that have been racing toward indiscriminate bans on lawyer advertising that is deemed undignified will take note of Judge Scullin’s advice that lawyer ad regulation must be “accomplished in a manner consistent with established First Amendment jurisprudence.”

p.s. I am a bit disappointed that Judge Scullin repeats the unproven assertion that “the public perception of the legal profession has been greatly diminished” by ads deemed “tasteless” or “obnoxious.” If the NY Bar Dignity Police are feeling unappreciated after the decision in Alexander v. Cahill, they should consider moving to France, where the new government is looking for people who do less thinking. See “New Leaders Say Pensive French Think Too Much,” New York Times, July 22, 2007. Update: See Nicole Black’s thoughtful column in the Daily Record, “Lawyer Advertising — The Great Debate,” which is reproduced at her weblog Sui Generis (July 31, 2007).

update (July 24, 2007): See Law.com‘s news coverage, in “N.Y. Federal Judge Strikes Down Many New Attorney Ad Rules: Finds state failed to prove that ban on certain content advanced goal of protecting public from misleading ads,” New York Law Journal (July 24, 2007), which explains:

The four presiding justices of New York’s Appellate Division, who are charged with overseeing attorney discipline, first unveiled proposed restrictions on attorney advertising last June to address concern that outrageous and aggressive lawyer ads were misleading the public as well as harming the image of the profession.

But Northern District of New York Judge Frederick J. Scullin ruled that the state had largely failed to show that its wholesale prohibitions of certain kinds of content had advanced its interest in protecting the public from misleading lawyer advertisements. Moreover, he said, the state had failed to show less onerous means could not achieve the same ends.

“Defendants have failed to produce any evidence that measures short of categorical bans would not have sufficed to remedy the perceived risks of such advertising being misleading,” the judge wrote in Alexander & Catalano v. Cahill, 07 Civ. 117. “There is nothing in the record to suggest that a disclaimer would have been ineffective.”

 update (Aug. 11, 2007): NYSBA President Kathryn Madigan says she agrees with the Alexander decision.  Should we believe her?   See “after Alexander v. Cahill, where does NYSBA stand on lawyer advertising?“.

mountain butterfly
from her boulder
to mine

moonrise . . .
cattle single file through
the narrow pasture gate

early morning cool
men in hard hats gather
on the last patch of grass

tongue out
the boy guides a new airplane
round and round

thunder . . . erasingS
little leaguers chatter
silenced

baseball
rolls into the mud –
painted lady flutters up

……………………. by Randy Brooks
“early morning cool” – the loose thread: rma 2001; Modern Haiku XXXII:1;
“moonrise . . .” – the loose thread: rma 2001; tundra 2
“mountain butterfly” – a glimpse of red: RMA 2000; Modern Haiku XXXI:2

“tongue out” – The Heron’s Nest VIII (2006)
“thunder” & “baseball” – Baseball Haiku (2007)

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