[NYTr] Fed Court: NY State Law Regulating Lawyers' Ads Violate Free Speech

[nytr at olm.blythe-systems.com]

Public Citizen - Jul 23, 2007
http://www.citizen.org/pressroom/release.cfm?ID=2479

July 23, 2007

New Lawyer Advertising Rules in New York Violate Free Speech, 
Federal Court Rules

Public Citizen Wins Injunction Against Unconstitutional Rules

WASHINGTON, D.C. – New rules governing lawyer advertising that took
effect in New York on Feb. 1 cannot be enforced because they violate
the First Amendment right to free speech, according to a ruling issued
today by a federal court in New York.

The U.S. District Court for the Northern District of New York ruled in
favor of Public Citizen’s request for an injunction against many of the
new rules. The organization represented its members and attorney James
L. Alexander and his law firm, Alexander & Catalano. The New York firm
was forced to change its advertisements to comply with the more
restrictive rules.

The new guidelines were part of a revision of the rules contained in
New York’s Code of Professional Responsibility for lawyers, which is
designed to protect consumers by prohibiting false and misleading
lawyer advertisements.   Public Citizen contended in its lawsuit that
the rules’ broad language unconstitutionally prohibited truthful
communication of information about legal services to New York
consumers. The court heard oral argument on June 18.

In a victory for First Amendment rights, the court permanently enjoined
enforcement of most of the challenged rules against attorney
advertising, including rules against attention-getting techniques, the
use of nicknames and mottos, the use of client testimonials, the
portrayal of judges and the use of Internet pop-up ads.

“The New York rules went too far in imposing burdensome restrictions on
legal free speech that do not protect consumers,” said Greg Beck, an
attorney for Public Citizen who litigated the case. “The court rightly
recognized that the First Amendment prevents states from arbitrarily
restricting advertising just because some may find it distasteful.”

In today’s ruling, the court held that the advertising at issue in the
case was a form of speech protected by the First Amendment, and it
categorically rejected New York’s argument that advertising considered
by the state to be trivial or irrelevant was not covered by free speech
rights. It noted that the state had not produced any evidence that its
restrictions on speech were necessary to protect consumers and found
that the prohibitions were much broader than necessary to accomplish
the state’s claimed objectives.

Public Citizen also challenged the rules’ application to non-commercial
speech, such as offers by lawyers to represent clients without a fee in
civil rights cases. And in what amounted to another victory for free
speech, the court construed the challenged amendments not to apply to
nonprofit attorneys.

“The main beneficiaries of this decision are New York consumers,” Beck
said. “Truthful advertising promotes healthy competition between
lawyers and allows the public to learn about their rights and available
legal services.”

READ the decision.
http://www.citizen.org/documents/alexanderorder.pdf

READ Public Citizen’s lawsuit and other materials in the case.
http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=358

READ more about this issue, visit the Consumer Law & Policy Blog,
co-sponsored by Public Citizen’s Consumer Justice Project.
http://pubcit.typepad.com/clpblog/advertising/index.html