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2nd Circuit Lets Loose on Attorney Ad Restrictions

By Tanya Roth, Esq. on March 17, 2010 | Last updated on March 21, 2019

New York attorneys, you can go on and get creative, according to the 2nd Circuit. Recently, the appellate court struck down some of the Rules Of Professional Responsibility regulations ( 22 NYCRR §1200), which limit certain tactics in attorney ads as violations of the First Amendment. Lawyers, now you can be as cool as Apple, as charming and quirky as E*Trade...well unless you worry Lindsay Lohan will sue you, but that's another post.

The New York Law Journal reports the plaintiffs in the case were Alexander & Catalano, a Syracuse-based personal injury firm, and Public Citizen Litigation Group. The plaintiffs sought to challenge the restrictions on nicknames (they liked to call themselves the "heavy hitters"), the portrayal of judges in ads, and client testimonials in pending cases, among other issues. The court found that in each of these instances, the state's interest in preventing misleading ads and ensuring the "dignity" of the profession (possibly too late for that, N.B. again the newest Lohan case) were not served in a way that outweighed the First Amendment concerns.

The plaintiffs' ads under consideration by the court showed the "heavy hitters" towering over buildings and, usefully, counseling space aliens. Assistant Solicitor General Owen Demuth urged the circuit panel find in favor of the content-based regulations, which he argued prohibited the use of "unverifiable, non-informational or otherwise irrelevant information" that should not be afforded First Amendment protection.

Gregory A. Beck of Public Citizen, the lead attorney for the plaintiffs, said the rules restrict basic advertising techniques that people see on television all the time, and which are "harmless to consumers." While the state contended the rules make lawyers look dignified, they actually have the effect of making attorney ads look "antiquated and strange," Beck said in an interview. The whole space alien thing, though, just made them look like regular guys.

While finding for the plaintiffs in the above instances, the court did uphold two of the rules. Regulations prohibiting portraying a "fictitious" law firm or making a group of "dream team" lawyers appear to be from different firms, who in actuality belonged to the same firm, were upheld as they actually could be confusing to the consumer. In addition, the mandatory 30 day moratorium on targeted advertisements to victims of a specific event was also confirmed by the court. In sum, offering sound legal advice to space invaders in, diving into the Hudson to hand business cards to groups like Captain Sully's crash survivors, out.

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