New York Advertising Rules Declared Unconsitutional

If you haven’t already heard...the new rules governing lawyer advertising that took effect in New York on Feb. 1 cannot be enforced because they violate the First Amendment right to free speech, according to a ruling issued today by a federal court in New York.

NEW YORK STATE BAR ASSOCIATION NOTICE
Office of the President

I wanted to update you on a recent court decision relating to the rules on lawyer advertising recently adopted by the Appellate Divisions.

In Alexander v. Cahill, the U.S. District Court for the Northern District of New York analyzed the lawyer advertising and solicitation rules adopted by the Appellate Division of Supreme Court effective February 1, 2007. The Court upheld many of the rules, but did find some portions unconstitutional as protected free speech under the First Amendment. The decision is available online at http://www.nysba.org/AttyAdvCourtDecision

Our Association s Task Force on Lawyer Advertising began its work two years ago to address the dual concerns of protecting the public from false or misleading advertising or solicitation by attorneys while recognizing the legitimate interests of lawyers in informing the public about legal services. We are gratified that the Court has recognized this balance of interests and we are in agreement with the Court’s decision, which in many areas referenced the analysis provided by our Task Force. Going forward, we welcome the opportunity to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.

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.

It is our understanding that the court system will appeal the decision to the U.S Court of Appeals for the Second Circuit and seek relief from the injunction. Please check my blog for updates: http://nysbar.com/blogs/president

Best regards.

Kathryn Grant Madigan
President, New York State Bar Association
1 Elk Street, Albany, NY 12207 P 518.463.3200 F 518.487.5517