Most content-based provisions of New York State’s attorney advertising rules were invalidated by a panel of the Second Circuit Court of Appeals, in the case of Alexander v. Cahill, Nos. 07-3677-cv (L), 07-3900-cv (XAP) (Mar. 12, 2010).
In the district court, plaintiffs — requesting a preliminary injunction and a declaratory judgment — had asserted that content-based provisions of Rule 7.1(c) of New York’s Rules of Professional Conduct, codified at N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c), violated the First Amendment. The challenged rules prohibit:
- the use of client testimonials and endorsements respecting pending matters;
- representations of judges or fictitious lawyers or law firms;
- the depiction of lawyers’ attributes not relevant to lawyers’ competence (e.g., puffery); and
- the use of names or marks “impl[ying] an ability to obtain results in a matter.”
The plaintiffs also challenged Rules 4.5 and 7.3(e), which establish a 30-day moratorium on lawyers’ unsolicited communications to injured persons or their families in the context of personal injury or wrongful death cases.
These rules had been adopted in response to the Report and Recommendations of the New York State Bar Association Task Force on Lawyer Advertising (2006). The rules differ in significant ways from those recommendations, however, as the Second Circuit panel observed in its opinion.
Applying intermediate scrutiny as required by Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 564-66 (1980), the district court invalidated all of the content-based advertising restrictions, but upheld the solicitation moratorium.
The Second Circuit panel affirmed in part and reversed in part. Applying the first prong of the Central Hudson test, the panel, in an opinion by Judge Calabresi, ruled that all of the advertising targeted by the content-based restrictions was protected by the First Amendment, with one exception. Narrowly interpreting the provision prohibiting portrayals of fictitious lawyers and firms to apply “only to situations in which lawyers from different firms give the misleading impression that they are from the same firm (i.e., ‘The Dream Team’),” the panel held that provision targeted “actually misleading” speech which “is not entitled to First Amendment protection.”
Applying the second prong of Central Hudson, the panel ruled that New York State had demonstrated two substantial interests underlying the advertising rules: “‘prohibiting attorney advertisements from containing deceptive or misleading content’” and “‘protecting the legal profession’s image and reputation.’”
Applying the third prong of Central Hudson, the panel found that none of the rules targeting protected speech was directly related to those state interests, because the targeted types of advertising were only potentially misleading, and the state had presented no evidence of actual, misleading or deceptive uses of such advertising. The panel also noted that respecting most of these restrictions, the Task Force had recommended only disclaimers or disclosure, rather than outright bans on speech. Respecting the ban on the use of trade names, the panel distinguished Friedman v. Rogers, 440 U.S. 1 (1979). The panel reasoned, first, that Friedman may no longer be good law, as it was decided before, and uses an analysis arguably inconsistent with that of, Central Hudson; and, second, that the state in Friedman had presented substantial evidence of actually deceptive use of tradenames in the profession that the state sought to regulate in that case.
The panel proceeded to apply the fourth prong of the Central Hudson test. The panel concluded that, even assuming that the content-based restrictions satisfied the third prong of Central Hudson, “each would fail the final inquiry because each wholly prohibits a category of advertising speech that is potentially misleading, but is not inherently or actually misleading in all cases.” The panel again cited the fact that the Task Force had primarily recommended the use of disclaimers and disclosures rather than prohibitions on speech.
Respecting the moratorium on direct solicitation, the panel upheld the provision. Applying the second prong of Central Hudson, the panel found that the state had demonstrated a substantial interest in preventing, in the language of the Task Force report, “‘annoyance and offense to those already troubled by an accident or similar occurrence.’” Respecting the third prong of Central Hudson, the panel, noting the similarities between the New York rules and those upheld by the Supreme Court in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), concluded that the New York moratorium directly furthered the state’s interest. Applying the fourth prong of Central Hudson, the panel held that the rules were sufficiently narrowly tailored. The panel reasoned that the moratorium rules, even though medium neutral, governed speech “targeting certain accident victims,” and that speech so targeted — even if transmitted via broadcast media, Internet, or newspapers — was “more similar to direct-mail solicitations, which can properly be prohibited within a limited time frame, than to ‘an untargeted letter.’”
(After discussing the issue of format-specific versus format-neutral restrictions on commercial speech, the panel ruled “that even acknowledging that differences among media may be significant in some First Amendment analyses, they are not so in this case.” Three aspects of this portion of the panel’s opinion may be of particular interest to legal informatics and legal communication scholars:
- First, Judge Calabresi cited two law review articles to support the panel’s view that format-neutral restrictions were appropriate to this context: Amy Haywood & Melissa Jones, Navigating a Sea of Uncertainty: How Existing Ethical Guidelines Pertain to the Marketing of Legal Services over the Internet, 14 Geo. J. Legal Ethics, 1099, 1113 (2001); Christopher S. Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248 (2003).
- Second, the opinion notes that many states have adopted legal ethics rules respecting attorneys’ Internet advertising or solicitation, issues that had also been addressed in the New York Task Force report.
- Third, respecting the need for regulation of advertisements and solicitation transmitted via email providers, Judge Calabresi observed: “At present, Gmail’s algorithm for placing targeted advertisements next to e-mail messages omits such ads where an e-mail message mentions a catastrophic event or tragedy. See More on Gmail and Privacy, Jan. 2007, http://mail.google.com/mail/help/about_privacy.html. It is by no means certain, however, (a) that Google will continue such a policy, (b) that the algorithm runs without flaws, or (c) that other e-mail providers will exercise similar good taste.”)
The panel further concluded that the New York moratorium was more narrowly tailored than the similar rules upheld in Florida Bar, to the extent that the New York rules “shorten the moratorium period to fifteen days where an attorney or law firm must make a filing within thirty days of an incident as a legal prerequisite to a particular claim.”
Respecting the invalidated rules, the panel invited the Appellate Division to draft revised advertising rules consistent with panel’s ruling. Whether the state will seek further appellate review of the panel’s decision is unclear.