Finds state failed to prove that ban on certain content advanced goal of protecting public from misleading ads
Anthony LinNew York Law Journal (Read entire article)July 24, 2007
A federal judge has ruled unconstitutional most of the sweeping new restrictions on attorney advertising introduced earlier this year by the New York courts.
The restrictions, which went into effect Feb. 1, had barred lawyers from, among other practices, using nicknames that suggest an ability to obtain results or touting “characteristics clearly unrelated to legal competence.”
Alexander & Catalano, the Syracuse, N.Y., personal injury firm that challenged the constitutionality of the advertising restrictions, had previously run ads calling its lawyers “heavy hitters” and showing them towering over downtown office buildings or sprinting at impossible speeds to help clients.
The four presiding justices of New York’s Appellate Division, who are charged with overseeing attorney discipline, first unveiled proposed restrictions on attorney advertising last June to address concern that outrageous and aggressive lawyer ads were misleading the public as well as harming the image of the profession.
But Northern District of New York Judge Frederick J. Scullin ruled that the state had largely failed to show that its wholesale prohibitions of certain kinds of content had advanced its interest in protecting the public from misleading lawyer advertisements. Moreover, he said, the state had failed to show less onerous means could not achieve the same ends.
“Defendants have failed to produce any evidence that measures short of categorical bans would not have sufficed to remedy the perceived risks of such advertising being misleading,” the judge wrote in Alexander & Catalano v. Cahill, 07 Civ. 117. “There is nothing in the record to suggest that a disclaimer would have been ineffective.”
Along with the bans on nicknames and nonlegal characteristics, prohibitions on active client testimonials, portrayals of judges and fictitious law firms and the use of Internet pop-up ads were also struck down as unconstitutional in Scullin’s decisio