Circuit Finds Attorney Ad Rule on Specialty Violates Free Speech-NYLJ

Parts of a New York rule requiring that attorneys who claim to be certified specialists make prescribed disclosure statements violates the First Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.

Buffalo personal injury lawyer J. Michael Hayes convinced the Second Circuit that there was a lack of clear standards for enforcing Rule 7.4 of the New York Rules of Professional Conduct on attorney specializations.

Mr. Hayes had drawn the attention of the Attorney Grievance Committee in the Eighth Judicial District for inadequate disclosures on his letterhead and on one of two billboards advertising his services in 1999.

Although he was never formally disciplined for running afoul of Rule 7.4, “Identification of Practice and Specialty,” Mr. Hayes was facing potential discipline for his letterhead when he filed an action in the Western District seeking a declaration that the rule was unconstitutional both on its face and as applied.

On March 5, the Second Circuit agreed in Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District10-1587-cv, reversing Western District Judge John T. Elfvin’s grant of summary judgment to the grievance committee and the decision of Magistrate Judge H. Kenneth Schroeder, who rejected Mr. Hayes’ void-for-vagueness claim following a bench trial in 2010.



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