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]

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