Thursday, March 18, 2010

2d Circuit strikes down parts of New York's attorney advertising rules

Goofball legal advertisements might make lawyers look bad, but the State of New York cannot prohibit them. That's the long and the short of a recent decision from the Second Circuit, which strikes down several provisions adopted by the state courts intended to prohibit potentially misleading ads and overly aggressive marketing.

The case is Alexander v. Cahill, decided on March 12. If you run a law office you should read this opinion. If you want to know why lawyers are allowed to run silly advertisements on television, you should also read this opinion.

Under the Central Hudson test, the state can regulate commercial speech to prevent misleading promotions. The government needs a substantial reason to regulate this speech. And the rules cannot be more extensive than necessary. This means that only false and deceptive speech can be regulated, along with unlawful activity. Since potentially misleading ads cannot be restricted, the state regulations on this point violate the First Amendment. Except that you cannot promise clients that some kind of "dream team" will try your case; the advertisements cannot suggest that lawyers not associated with the firm actually work for the firm.

The Court of Appeals takes on some of the other advertising provisions. Since client testimonials are not inherently misleading, the state can regulate them only if the ads say that past success in other cases indicate future performance. You can also have someone portray a judge in the ads so long as you are not suggesting that you can influence the court. While the state wants to prohibit ads that rely on irrelevant techniques to catch the viewer's attention, these advertisements cannot be regulated no matter how silly (the ad in this case showed the lawyers towering over New York City and representing space aliens). Irrelevant advertisements are not necessarily misleading. You can also use nicknames in promoting your law office, so long as they do not imply an ability to get results. The plaintiffs in this case referred to themselves as "heavy hitters." The First Amendment allows for this nickname, which does not mislead.

The Second Circuit also looks at rules that (with some exceptions) place a 30-day moratorium on certain advertisements, in particular those that prevent lawyers from seeking a specific client or group of clients through television, radio, newspapers and the Internet. Rules like this would apply when lawyers want to represent disaster victims. These rules are also constitutional. Persons who are targeted by lawyers during times of trauma are particularly vulnerable, and Judge Calabresi calls them the "Porcelain Hearts." He also upholds up the rules to preserve Wemmick's Castle (a Charles Dickens reference), that is, to temporarily prevent lawyers from sending letters to the homes of trauma victims. Borrowing from the Supreme Court's "7 Dirty Words Case" (FCC v. Pacifica Foundation, 438 U.S. 726 (1978), Judge Calabresi says that while Internet and other electronic solicitations are not quite like direct mailings, for purposes of this case, they are comparable in that the consumer is subjected to obnoxious advertisements which intrude on the home and therefore disturb domestic tranquility. The 30-day moratorium is legal.

1 comment:

Anonymous said...

"While the state wants to prohibit ads that rely on *irrelevant* techniques to catch the viewer's attention"

Do you mean "irreverent"?