Second Circuit Strikes Down Restrictions on Legal Advertising

Ted Rao, Albany Government Law Review Member

On March 12, the Second Circuit affirmed a lower court’s decision that certain restrictions on legal advertising were unconstitutional.[1]  In doing so, the court rejected rules governing the legal profession promulgated by New York’s Appellate Division that were originally slated to go into effect on February 1, 2007.  The court also upheld rules requiring that attorneys wait at least thirty days before soliciting accident victims as potential clients in personal injury claims.[2]

 The court’s opinion was authored by Senior Judge and former Yale Law School Dean, Guido Calabresi, joined by Judge John Walker Jr.  Prior to being nominated to the United States Supreme Court, Justice Sonia Sotomayor also served on the panel that heard oral arguments in the case.[3]

The Appellate Division’s new rules[4] restricted, among other things, “testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.”[5]

Plaintiffs were personal injury attorney James Alexander, his Rochester and Syracuse-based law firm Alexander and Catalano, and Public Citizen, a non-profit consumer advocacy organization originally founded by Ralph Nader.[6]  The Court described the firm’s advertisements as such:

[T]he firm’s commercials often contained jingles and special effects, including wisps of smoke and blue electrical currents surrounding the firm’s name. Firm advertisements also featured dramatizations, comical scenes, and special effects—for instance, depicting Alexander and his partner as giants towering above local buildings, running to a client’s house so quickly they appear as blurs, and providing legal assistance to space aliens. Another advertisement depicted a judge in the courtroom and stated that the judge is there ‘to make sure [the trial] is fair.’ The firm’s ads also frequently included the firm’s slogan, ‘heavy hitters,’ and phrases like ‘think big’ and ‘we’ll give you a big helping hand.’[7]

 

Defendants, The Departmental Disciplinary Committee of the Appellate Division, First Department, were represented by Chief Counsel Thomas Cahill.[8]  At the trial level, Judge Scullin of the U.S. District Court of the Northern District of New York agreed with plaintiffs that most of the content-based restrictions were unconstitutional, but upheld the thirty-day waiting period on victim solicitations.[9]  On appeal, the court referenced the “four part inquiry” promulgated by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York regarding whether restrictions on commercial speech run afoul of the First Amendment.[10]  There, the Court held that in order for commercial speech to be protected:

 it at least must concern lawful activity and not be misleading. Next, we ask [2] whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine [3] whether the regulation directly advances the governmental interest asserted, and [4] whether it is not more extensive than is necessary to serve that interest.[11]

 The Second Circuit ultimately concluded “that the Central Hudson analysis applies to regulations of commercial speech that is only potentially misleading[,]” and that the advertisements in question represented commercial speech that was “not inherently false, deceptive, or misleading.”[12]  While the court conceded that Defendants satisfied the second prong of the Central Hudson test by proving a substantial state interest in “prohibit[ing] inherently or actually misleading commercial speech[,]”[13] the court also noted that Defendants failed to show evidence that potential consumers had been misled by attorney advertisements that took the form of special effects or other theatrical elements, holding that:

[T]he sorts of gimmicks that this rule appears designed to reach—such as Alexander & Catalano’s wisps of smoke, blue electrical currents, and special effects—do not actually seem likely to mislead. It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client’s house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens. But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe—purely as a matter of ‘common sense’—that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics. Indeed, some of these gimmicks, while seemingly irrelevant, may actually serve ‘important communicative functions: [they] attract[ ] the attention of the audience to the advertiser’s message, and [they] may also serve to impart information directly.’[14]

 In upholding the lower court’s restrictions on direct solicitations within a thirty-day period following an accident, the court noted that “the District Court concluded that New York’s moratorium materially advanced state interests in protecting the privacy of citizens and guarding against the indignity of being solicited for legal services immediately following a personal injury or a wrongful death event, and did so in a reasonably proportionate manner.”[15]  The District Court cited the Supreme Court’s holding in Florida Bar v. Went For It, in which a restriction on direct-mail solicitation was upheld as a permissible restriction on commercial speech.[16]

While noting that “[t]here is a compelling, commonsense argument that, given the uncertainties of litigation, names that imply an ability to obtain results are usually misleading[,]” the Second Circuit held that the simple acknowledgement that “such names are often misleading,” was not enough to survive the court’s scrutiny under the Central Hudson standard, and that instances such as the plaintiffs’ own description of their law firm, as “Heavy Hitters,” was not “inherently or actually misleading in all cases.”[17]


[1] Alexander v. Cahill, 598 F.3d 79, 83 (2d Cir. 2010).

 [2]Id. at 103.

[3] Id. at 83 n.1.

[4] N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c) (2007).

[5] Alexander, 598 F.3d at 83.

[6] Id; Public Citizen, http://www.citizen.org/litigation/free_info/foic_aids/articles.cfm?ID=758 (last visited May 17, 2010).

[7] Alexander, 598 F.3d at 83–84.

[8] See id. at 84.

[9] Id. at 86.

[10] Id. at 88 (citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980)).

[11] Id.

[12] Alexander, 598 F.3d at 89.

[13] Id. at 91.

[14] Id. at 94 (quoting Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 647 (1985)).

[15] Id. at 87 (citing Alexander v. Cahill, 634 F. Supp.2d 239, 253–55 (N.D.N.Y 2007) (noting, among other things, “an emerging consensus among authorities, state and federal, regarding the desirability of some form of moratorium.”)).

[16] Alexander, 634 F. Supp.2d at 253–54 (citing Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)).

[17] Alexander, 598 F.3d 79, 94–96.

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