The New York Law Journal by Noeleen G. Walder - March 15, 2010
The circuit also held that preventing lawyers from employing special effects or portraying a judge in an ad did not "materially advance" the state's interest in prohibiting misleading speech. "The speech that Defendants' content-based restrictions seeks to regulate—that which is irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900-cv. The ruling primarily affirms the July 2007 decision by Northern District Judge Frederick J. Scullin. The appellate panel disagreed with Judge Scullin in finding that one provision of the rules, which bars ads from portraying a "fictitious law firm" or "the use of a fictitious name to refer to lawyers not associated together in a law firm" was "actually misleading" and not entitled to First Amendment protection. The panel also upheld a portion of the rules requiring attorneys to wait 30 days after accidents before targeting advertising to solicit personal injury clients. The rules, which went into effect on Feb. 1, 2007, and are codified in New York's Code of Professional Responsibility at 22 NYCRR §1200, were adopted by the four state Appellate Divisions and challenged by Alexander & Catalano, a Syracuse-based personal injury firm, the firm's managing partner, James Alexander, as well as Public Citizen Litigation Group. The circuit opinion was written by Judge Guido Calabresi and joined by Judge John M. Walker Jr. Judge Sonia Sotomayor was the third member on the panel before being elevated to the U.S. Supreme Court last year.
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, which are "harmless to consumers." And while the state contended the rules make lawyers look dignified, they actually have the effect of making attorney ads look "antiquated and strange," Mr. Beck said in an interview. According to David G. Keyko of Pillsbury Winthrop Shaw Pittman, who served as the lead attorney for the New York City Bar, which submitted an amicus brief supporting the plaintiffs, the ruling does not change the status quo, since an injunction prohibiting the state from enforcing the rules remained in effect. But, he said, the decision "assures everyone that the rules will not spring back into place." Public Citizen, a Washington, D.C.-based group founded by Ralph Nader, and Alexander & Catalano first challenged the rules in February 2007. Prior to their adoption, Alexander & Catalano had not only dubbed itself "heavy hitters," but ran ads depicting partners as giants towering over buildings and counseling space aliens. The law firm of James L. Alexander, and Peter Catalano challenged the 2007 regulations. One commercial showed a judge in a courtroom, who was there to "make sure [the trial] is fair." Another used wisps of smoke and blue electrical currents to highlight the firm's name. While the new rules were less restrictive than a draft version introduced in 2006, Alexander & Catalano and Mr. Beck nonetheless maintained the "cumulative effect" of the regulations was to "prohibit a wide range of potentially interesting" advertising, relied on by consumers "of moderates means."