In Alexander v. Cahill, 5:07-CV-117, 2007 U.S. Dist. LEXIS 53602, 2007 WL 2120024 (N.D.N.Y. July 20, 2007), the court struck down as unconstitutional certain portions of New York’s amended rules on attorney advertising, and upheld other portions.  Plaintiffs, a law firm¹ and a non-profit group that litigates public interest cases², claimed that the amended rules violate the First Amendment’s free speech provisions.  Defendants, counsel for the state’s judicial departments responsible for attorney disciplinary rules, were denied their preliminary motions seeking dismissal on grounds of no standing and abstention.

The court grouped the challenged amendments into the following categories: 
(1) restricting potentially misleading ads,
(2) requiring “a thirty-day moratorium on certain communications following a personal injury or wrongful death event,” and
(3) applying advertising rules to nonprofits. 
Alexander, 2007 U.S. Dist. LEXIS 53602, at **6-10.  As attorney advertising is commercial speech having some First Amendment protection, the court applied the test set forth in Central Hudson Gas & Electric Corp v. Public Service Communication of New York, 447 U.S. 557, 564-66 (1980), requiring defendants to (1) assert a substantial state interest addressed by the restrictions, (2) demonstrate that the restriction materially advances that interest, and (3) establish that the restriction is narrowly drawn.   Alexander, 2007 U.S. Dist. LEXIS 53602, at *13.

Applying the Central Hudson test to the first category, the amendments that restrict misleading ads, the court readily found that states “have a substantial interest in protecting consumers from misleading attorney advertisements” and in maintaining respect for the bar and attorney professionalism.  Alexander, 2007 U.S. Dist. LEXIS 53602, **16-17.  Relying on the Task Force Report underlying the amendments, the court further found that the state’s interests were materially advanced by the restrictions in §1200.6(c)(3) (prohibiting the portrayal of judges in attorney ads) and in §1200.6(c)(7) (prohibiting trade names implying “the ability to obtain results”).  Id. at *18.  However, the defendants did not meet this burden in connection with the remaining amendments in §1200.6(c)³.  The court noted that the Task Force recommended alternatives, such as implementing disclosure and review requirements and allowing dramatizations with protective disclosures.  When the court applied the third prong of the Central Hudson test to §1200.6(c)(3) and (7), the court found them overbroad, unnecessarily imposing categorical bans rather than considering effective alternatives such as disclaimers or improved enforcement of existing standards on a case-by-case basis.  “[R]ecognizing the value of the free flow of commercial information, the Supreme Court has stated that a state may not impose a prophylactic ban on potentially misleading speech merely to spare itself the trouble of ‘distinguishing the truthful from the false, the helpful from the misleading and the harmless from the harmful’.” Id. at **22-23, quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 646 (1985).  Thus the court found all the challenged amendments in §1200.6(c) to be unconstitutional.

Defendants did not present argument on the first two prongs of the Central Hudson test in support of the pop-up regulation (§1200.6(g))⁴, resulting in its invalidation.  The court noted that the amendment (challenged as to its effect on both commercial and non-commercial speech) was overbroad in any event.

Regarding §1200.7(e)⁵, restricting lawyer domain names and websites, the first prong of Central Hudson again was met based on the state’s interest in promoting truthful ads and maintaining attorney professionalism and respect for the bar.  Based on Task Force findings that substantial problems exist with attorney advertisement in general, ranging from distastefulness to inadequate and deceptive ads and failure to include identification and contact information on many internet websites, the court found that the amendment materially advanced the state’s interests.  The court also found the amendment to be narrowly tailored, such that these amendments passed constitutional muster.

The court upheld the second category of amendments, imposing a thirty-day moratorium on contacting potential claimants in personal injury or wrongful death accidents (with only a fifteen-day limit where filing within thirty days is required)⁶.  The court found the scope of prohibited communications to be broad, affecting all types of media.  The court found that the state “has substantial interests in protecting the privacy of its citizens and guarding against the indignity and offense of being solicited for legal services immediately following a personal injury or wrongful death event.” Alexander, 2007 U.S. Dist. LEXIS 53602, *33.  The state’s interests are materially advanced by these amendments and narrowly tailored, according to the court, based on the Task Force’s review of similar moratoriums and its recommendation of a fifteen-day cooling off period, a finding that the restriction only need be “proportional to the state’s interests,” id. at *35, the approval of a Florida thirty-day moratorium on direct mailings in Florida Bar v. Went for It, 515 U.S. 618, 632 (1995), and the conclusion that the public can adequately locate legal counsel within the thirty-day period through ads which avoid referencing the specific event or targeting specific potential claimants.

Finally the court addressed the last category of amendments – application of advertising restrictions to non-profits⁷.  Plaintiffs objected to the amendments’ application to non-commercial speech, such as speech by pro-bono and non-profit organizations “that use litigation as a means of political expression and association.” Id. at *38.  The court agreed with the defendants that the amendments do not apply to non-commercial speech. 
In conclusion, the court stated,                         

Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished. Although the Court finds it commendable that the Appellate Division of the state of New York and the disciplinary committees that function on its behalf pursue ways to regulate the manner and means by which attorneys who choose to advertise may do so, they must be mindful of the protections such advertising has been afforded and take the necessary steps to see that the regulation of such advertising is accomplished in a manner consistent with established First Amendment jurisprudence.

Id. at **41-42.

¹The managing partner, James Alexander, was a plaintiff in addition to the firm, Alexander & Catalano. When the new rules were adopted, the law firm stopped some of its advertising, which included references to the firm as “the heavy hitters” and scenes of “its attorneys as giants towering over downtown buildings, … counseling space aliens concerning an insurance dispute, and … running as fast as blurs to reach a client in distress.”  Alexander, 2007 U.S. Dist. LEXIS 53602, **3-4.

²Public Citizen, Inc.

³N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.6:
    (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 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.

⁴ N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.6:
(g) A lawyer or law firm shall not utilize:
(1) a pop-up or pop-under advertisement in connection with computer accessed communications, other than on the lawyer or law firm’s own web site or other internet presence . . .

⁵N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.7:
      (e) A lawyer or law firm may utilize a domain name for an internet web site that does not include the name of the lawyer or law firm provided:
        (1) all pages of the web site clearly and conspicuously include the actual name of the lawyer or law firm;
        (2) the lawyer or law firm in no way attempts to engage in the practice of law using the domain name;
        (3) the domain name does not imply an ability to obtain results in a matter; and
        (4) the domain name does not otherwise violate a disciplinary rule.

⁶N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.8.

⁷N.Y. Comp. Codes R. & Regs. tit. 22 § 1200.6:
(f) Every advertisement other than those appearing in a radio or television advertisement or in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to section 1200.8(a)(1) of this Part, shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site.  If the communication is in the form of a self-mailing brochure or postcard, the words “Attorney Advertising” shall appear therein.  In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”
. . .                                                                                                                                                              
(k) All advertisements shall be preapproved by the lawyer or law firm and a copy shall be retained for the period of not less than three years following its initial dissemination.  Any advertisement contained in a computer-accessed communication shall be retained for a period of not less than one year.  A copy of the contents of any web site covered by this section shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days.

This article was prepared by Elvige Cassard of Daigle Fisse & Kessenich, PLC. Covington, LA.