Court Nixes Bulk of NY’s Attorney Ad Restrictions

(CN) - The 2nd Circuit struck down most of New York's content-based restrictions on attorney advertisements, ruling that even an ad depicting giant lawyers with superhuman speed who regularly defend space aliens is not likely to mislead consumers.

The Manhattan-based appeals court upheld the bulk of a district court decision on 2007 rules limiting certain types of attorney advertisement and solicitation. According to the court, only two of the rules pass muster under Supreme Court precedent: a 30-day moratorium on targeted solicitation following a specific incident, such as a plane crash, and a ban on "portrayals of fictitious law firms."

James Alexander and his Syracuse and Rochester, N.Y.-based law firm Alexander & Catalano, authors of the aforementioned alien-defenders ad, sued the New York Appellate Division over the rules, which banned "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."

Public Citizen, a nonprofit consumer rights organization, joined the firm in arguing that the restrictions violate the First Amendment.

The district court agreed in part, declaring most of the content-based rules unconstitutional except the 30-day moratorium on ads targeting accident victims. Both the law firm and the New York Appellate Division appealed.

The 2nd Circuit agreed with the district court on all but one of the regulations: the prohibition on portrayals of fictitious law firms. The three-judge panel found that the regulation applies "only to situations in which lawyers from different firms give the misleading impression that they are from the same firm (i.e., 'The Dream Team')."

"This portion addresses only attorney advertising techniques that are actually misleading (as to the existence or membership of a firm), and such advertising is not entitled to First Amendment protection," Judge Guido Calabresi wrote. Otherwise, the panel found that most of the rules were not misleading. Only speech that's "false, deceptive, or misleading, and speech that concerns unlawful activities" isn't protected, according to Supreme Court precedent.

"Defendants have not submitted any statistical or anecdotal evidence of consumer problems with or complaints of the sort they seek to prohibit. Nor have they specifically identified any studies from other jurisdictions on which the state relied in implementing the amendments," Calabresi wrote.

"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."

In upholding the 30-day moratorium on so-called "ambulance chasing," the panel cited "an emerging consensus among authorities, state and federal, regarding the desirability of some form of moratorium."

"We do not find constitutional fault with the 30-day time period during which attorneys may not solicit potential clients in a targeted fashion," Calabresi wrote. "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 further allows accident victims to initiate contact with attorneys even during the thirty days following an accident."

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