Attorney advertising rules violate the Constitution

If lawyers want to advertise, there are special rules governing whether they can tell the public they are "specialists." The Court of Appeals has struck down some of those rules as unconstitutional.

The case is Hayes v. State of New York Attorney Grievance Committee, decided on March 5. The Second Circuit really smacks around the attorney licensing board in this case. Hayes is a board-certified lawyer who specializes in civil litigation, having been so designated by the National Board of Trial Advocacy, an American Bar Association accredited organization. His advertisements, including billboards and letterhead, mention this certification. The grievance committee went after him for violating its rules. The Second Circuit says these some of these rules are too vague and therefore violate the First Amendment.

The Court of Appeals first says that it's legal for the requirement that advertisements say that the certifying organization, such as NBTA, are not affiliated with any government authority.This rule ensures that potential clients are not fooled into thinking that the government actually certifies lawyers.

But two other requirements violate the First Amendment. The state requires that the lawyer tell potential clients that certification is not a requirement for practicing law. As there is no proof that this rule is really necessary to avoid that risk, it fails under the Constitution as prohibiting a speculative harm. The Court says, "It is difficult to imagine that any significant portion of the public observing the thousands of lawyers practicing in New York without certification believe that all of them are acting unlawfully."

The other requirement that violates the First Amendment is one that compels the lawyer to state in his advertisement that certification "does not necessarily indicate greater competence than other attorneys experienced in this field of law. The Court says:

Although the assertion might be technically accurate, depending on how "competence" and "experienced in the field" are understood, the assertion has a capacity to create misconceptions at least as likely and as serious as that sought to be avoided by the first assertion. Some members of the public, reading this third assertion, might easily think that a certified attorney has no greater qualifications than other attorneys with some (unspecified) degree of experience in the designated area of practice. In fact, the qualifications of an attorney certified as a civil trial specialist by the NBTA include having been lead counsel in at least 5 trials and having "actively participated" in at least 100 contested matters involving the taking of testimony, passing an extensive examination, participating in at least 45 hours of CLE, and devoting at least 30 percent of the lawyer's practice to the specialized field. These qualifications may reasonably be considered by the certifying body to provide some assurance of "competence" greater than that of lawyers meeting only the criterion  of having some experience in the field, and a contrary assertion has a clear potential to mislead. Such a requirement does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.

Finally, the Second Circuit rejects another requirement, one that says that the disclaimers must be prominently displayed in the advertisement. As applied to Hayes, this is a vague rule, which runs afoul of the First Amendment.

Hayes advertised on billboards that set forth the disclaimer in lettering six inches high, one inch larger than the lettering required by the federal government for health warnings on similar cigarette advertising. It is not our role to assess whether such a disclaimer does or does not comply with the New York rule, and this case does not require us to opine on whether a clear and specific rule that required even larger lettering would comport with the Constitution. We find ourselves unable to conclude, however, that a lawyer of average intelligence could anticipate that lettering of that dimension could be construed as not "prominently made."

Making things worse, former principal counsel for the Grievance Committee said that his successor would probably apply the "prominence" rule differently than he would. This kinda proves how difficult it is to apply this rule, doncha think? If the rule is that difficult to apply, then it violates the First Amendment. The state is going to have to come up with some objective standards for the "prominence" rule.