State Brief Defends Restrictions on Ads; Argues Commercial Speech Can Be Limited (CLICK HERE FOR STORY)

State Brief Defends Restrictions on Ads Argues Commercial Speech Can Be Limited

By Joel Stashenko
The New York Law Journal
December 4, 2007

ALBANY - A Northern District federal judge failed to recognize the limits the U.S. Supreme Court has placed on commercial free speech when he ruled that most of New York state's new restrictions on attorney advertisements are unconstitutional, the state is arguing on appeal.

Promotional activities that the guidelines seek to prohibit are not protected by the First Amendment and U.S. Judge Frederick J. Scullin "erred" when he found them unconstitutional, the Attorney General's Office contends in its brief to the U.S. Court of Appeals for the Second Circuit.

The ad restrictions were challenged by a Syracuse lawyer, his firm Alexander & Catalano, and a public advocacy group. The Second Circuit has tentatively scheduled oral arguments for March to hear an appeal of Judge Scullin's determination.

The ad guidelines imposed starting Feb. 1, 2007, seek to bar flamboyant promotional techniques such as lawyers referring to themselves as "heavy hitters" or other monikers that suggest an ability to deliver special results. Other prohibitions struck down by Judge Scullin barred active clients from giving testimonials,
portrayals of judges and the use of Internet pop-up ads on Web sites other than the firm's own site (NYLJ, July 24).

The brief before the Second Circuit defending the ad guidelines, written by Assistant Solicitor General Owen Demuth, also asks that a permanent injunction issued by Judge Scullin in July prohibiting enforcement of the allegedly constitutionally infirm sections be lifted.

In reaching his determination, Judge Scullin relied heavily on Central Hudson Gas & Elec. Corp. v. Public Serv. Commn. Of N.Y., 447 U.S. 557, 566 (1980). In it, the U.S. Supreme Court for the first time introduced a four-prong test to determine if the regulation of commercial speech was permissible.

Judge Scullin found the New York lawyer ad guidelines violated the first of the four prongs, which recognizes First Amendment protections for commercial speech that does not concern unlawful activity and is not misleading. In doing so, Judge Scullin rejected the arguments by state attorneys that the new ad rules reached only "irrelevant, unverifiable and noninformational advertising material" that is not
protected by the First Amendment.

Mr. Demuth argues that Judge Scullin "overlooked" the First Amendment's role regarding commercial free speech. In the realm of lawyer advertising, that role has been to protect "truthful and verifiable information" that will allow consumers to make informed decisions when seeking an attorney, the state argued.

"New York's attorney advertising rules do not restrict the flow of this information," Mr. Demuth wrote. "Instead, they target only advertising that impedes informed decision-making by interjecting distorted imagery, unverifiable slogans, exaggerated dramatizations and other misleading gimmicks, none of which communicate facts helpful to choosing a lawyer."

The brief cited a long list of U.S. Supreme Court rulings that the state contended have all stood for the basic proposition that states' attorney advertising regulations should promote the dissemination of "truthful," "factual" and "nonmisleading" information about attorneys.

"It [the Supreme Court] has never held that puffery, dramatizations, exaggerations, unverifiable statements of opinion, slogans, or promises, absurd portrayals, extreme use of humor, appeals to emotions, fears or prejudices, special effects, nicknames, or other techniques in attorney advertisements unrelated to rational decisions
about selection of counsel are protected commercial speech," the state argued.

Mr. Demuth also took issue with Judge Scullin's criticism that the state failed to produce quantitative data supporting its arguments of the need for the ad rules. The U.S. Supreme Courts and several circuits have found grounds for striking down restrictions on speech in the absence of such empirical data, relying instead on "history, consensus and 'simple common sense,'" the state argued, citing Florida
Bar v. Went For It, 515 U.S. 618, 628 (1995).

The advertising rules stemmed from recommendations by a New York State Bar Association task force (NYLJ, Oct. 2, 2006). After months of sometimes-impassioned public debate, the amended rules were adopted in January 2007 by the presiding justices of the Appellate Division(NYLJ, Jan. 5).

They were challenged in the Northern District the day they went into effect by James L. Alexander, his Syracuse personal-injury firm, Alexander & Catalano, and Public Citizen, a Washington, D.C.-based public advocacy group founded by Ralph Nader.

Judge Scullin's ruling did uphold a guideline prohibiting attorneys from soliciting clients for personal injury and wrongful death cases for 30 days following an accident. He also did not strike down new rules governing lawyers' uses of domain names. Lawyers are prohibited from using domain names that suggest that they can obtain a result for clients, like "showmethemoney.com," otherwise prohibited by the
advertising rules.

Solicitation Moratorium

The plaintiffs are appealing the parts of Judge Scullin's ruling that upheld guidelines. The plaintiffs' papers are due Jan. 2 and the Second Circuit has tentatively scheduled oral arguments for the week of March 17, according to Public Citizen attorney Gregory Beck.

Mr. Beck said his arguments will focus on the solicitation moratorium called for in the guidelines. According to Mr. Beck, the forced period of refraining from solicitation creates the absurd situation where an attorney cannot be retained by a client who seeks out the attorney, and it also calls into question the legality of clients finding attorneys during the proscribed time period thanks solely to
information on lawyers' Web sites.

Mr. Beck said in a telephone interview yesterday that the state's arguments before the Second Circuit track the contention state attorneys made, largely unsuccessfully, before Judge Scullin.

"The state takes a leap from false and misleading advertising to advertising that they claim is not informative," Mr. Beck said. "In my opinion, there is a big difference between advertising that is false and advertising that is not informative. The problem is, who decides what is informative?"

Alexander & Catalano is a mainstay on Syracuse-area television and radio stations. Among its television advertisements are ones where the partners are shown dwarfing landmark buildings in downtown Syracuse and where lawyers for the firm are shown at blinding speed as they supposedly respond to clients' cases.

The firm also dubs itself "The Heavy Hitters" on its Web site.

- Joel Stashenko can be reached at jstashenko@alm.com.