As most of you now know, the U.S. District Court for the Northern District of New York has ruled on a handful of the rules concerning advertising that have been the subject of much debate in New York over the past two years. A Task Force of the State Bar chaired by Bernice Leber of Arent Fox LLP studied some 300 advertisements, provided a 50 state survey of the rules, the law and the literature in this area following which the House of Delegates of the State Bar approved of a set of proposed disciplinary rules. The Presiding Justices of the Appellate Division of Supreme Court subsequently considered and adopted the vast majority of the State Bar rules that became effective February 1, 2007. However, besides adopting the State Bar rules, the Presiding Justices also adopted rules that regulated the content of advertisements, five of which are the subject of the Alexander decision.
In Alexander v. Cahill, Judge Scullin validated the measured and sensible approach of the Task Force. Specifically, the Judge upheld three rules that the State Bar (and subsequently, the Court) adopted: (i) the rule requiring law firms to use the actual name of the law firm in domain names and websites, the actual name (as opposed to the domain name to practice law), the actual name of the law firm (as opposed to a domain name that implies an ability to obtain results) [NYCRR §1200.7(e)]; (ii) the rule providing for a 30 day moratorium on communications to victims and their families with respect to a personal injury or wrongful death [NYCRR § 1200.8(g), 1200.41-a]; and (iii) the desire to exclude non-profit legal organizations that do not charge clients from the ambit of the new advertising rules.
Significantly, the plaintiffs did not challenge the constitutionality of the vast majority of other rules that the Task Force suggested, the House of Delegates approved and the Courts adopted. For example, the rule defining “advertisement”, “computer-accessed communication”, the rule requiring “bona fide professional ratings” when used in advertising, and the rule permitting lawyers to advertise if the ad can be factually supported by the lawyer and contains the disclaimer “Prior results do not guarantee a similar outcome” were never challenged by the plaintiffs and remain inviolate. Similarly, the rule requiring retention and filing of certain advertisements and website advertisements including meaningful and extensive content changes was not the subject of this litigation. Finally, the rules governing solicitation that the State Bar proposed and the Courts adopted were not at issue and are not affected by the decision. In so ruling, the decision comports with the Task Force’s effort to strike a balance between an attorney’s right to advertise his or her services and protecting the public from advertising that is false and/or misleading.
I believe that most of us would agree that attorney advertising should be done in a manner that is dignified and balanced, enabling the consumer to make informed decisions about securing quality legal representation. Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster. And this recent decision reflects that trend.
In sum, Judge Scullin did determine that five of the rules adopted by the Courts were unconstitutional as protected free speech under the First Amendment. In so doing, the Court also granted a permanent injunction preventing the enforcement of these rules, which are listed below. The State will be appealing the decision to the U.S Court of Appeals for the Second Circuit and may be seeking interim relief to stay the injunction. We will keep you posted in that regard.
Notably, this decision referenced the expert analysis provided by our Task Force in a number of respects and we are indebted to the Task Force for their dedication and commitment to this important issue, particularly the Herculean efforts of Task Force Chair (and President Elect) Bernice Leber.
Going forward, we welcome the opportunity to continue to work with the Appellate Divisions to review and develop rules that will continue to strike an appropriate balance within the constitutional framework.
Below are additional details about the Court’s decision.
The following provisions of the Disciplinary Rules have been held unconstitutional, and the grievance committees are enjoined from enforcing them:
DR 2-101(C)(1) - endorsements/testimonials from current clients;
DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc.;
DR 2-101(C)(5) - techniques irrelevant to selection of counsel (e.g., a law firm appearing as baseball players);
DR 2-101(C)(7) - nicknames/monikers/mottos that imply an ability to achieve results;
DR 2-102(G)(1) - use of pop-up/pop-under advertisements.
The following provisions have been upheld:
DR 2-102(E) - domain name limitations;
DR 2-103(G) - 30-day rule re solicitation;
DR 7-111 - Communications after personal injury/wrongful death.
I welcome your thoughts on this decision.