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Second Circuit Approves Attorney Advertising

By Sean T. Carnathan, Litigation News Associate Editor – May 17, 2010

The U.S. Court of Appeals for the Second Circuit recently approved attorney advertising [PDF] that includes depictions of the lawyers as having super powers.


The challenged advertisements included ones referring to the lawyers of the firm as “heavy hitters,” portraying comical scenes, or incorporating special effects and jingles. In some advertisements, they depicted themselves “providing legal assistance to space aliens,” towering as giants above buildings, or running so fast that they appeared as blurs.


The firm’s advertising efforts apparently work. According to one ad posted on their website, “Quality Counts,” last year the firm fielded more than 9,000 calls from personal injury plaintiffs and handled more than 1,500 cases.


The dispute arose when the New York Appellate Division adopted new rules prohibiting certain types of attorney advertising and solicitation, which would have barred, among other things, “testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results.”


The U.S. District Court for the Northern District of New York declared most of these limitations unconstitutional. The Second Circuit largely affirmed, reversing only to the extent that the regulations prohibited “lawyers from different firms giving the misleading impression that they are from the same firm,” which it held is constitutional.


The Second Circuit also affirmed a 30-day moratorium on direct solicitations of accident victims or their families after the incident in which the injury occurred.


According to a New York Appellate Division press release, the new rules were intended to protect consumers “against inappropriate solicitations or potentially misleading ads, as well as overly aggressive marketing,” and also to “benefit the bar by ensuring that the image of the legal profession is maintained at the highest possible level.”


In striking down the challenged regulations and approving the challenged advertisements, the Second Circuit applied the test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, which allows only narrow restrictions that materially advance a substantial state interest when the state seeks to regulate First Amendment protected commercial speech.


The court accepted as substantial state interests both the protection of the public from false or misleading information and the protection of the image of the profession.


The court, however, was not willing to allow restriction of speech that is only potentially misleading. Speech that is “irrelevant, unverifiable, and non-informational,” concluded the court, “is not inherently false, deceptive, or misleading.”


“I feel that the court has it right,” says George Freeman, New York, cochair of the ABA Section of Litigation’s First Amendment and Media Litigation Committee.


“You see lots of lawyer advertising cases, but not doctor, accountant, or car mechanic advertising cases. The law treats lawyers as somehow exalted or different, and that is not the case. Objectively they are like other professionals,” says Freeman.


The contrary view “is a residue of a bygone era where it was not considered elegant for a law firm to advertise. That’s not the law and it ought not be the law,” he says.


Less enthusiastic about the Second Circuit’s decision is Andrew S. Pollis, Cleveland, cochair of the Section’s Ethics and Professionalism Committee and an assistant professor at Case Western Reserve Law School. “I don’t really agree with an unfettered right to advertise as long as the advertisements are not themselves deceptive,” says Pollis.


“I start with the assumption that although First Amendment rights are important, we are dealing with a profession,” Pollis explains, “but there is no First Amendment right to be a lawyer.”


“The right to be a lawyer is earned through a combination of education, substantive knowledge, and demonstration of fitness and character,” Pollis says.


“Free speech does not leap frog over the regulatory system intended to make sure we do our jobs properly,” he says.


Keywords: Litigation, Second Circuit, attorney advertising


 

  • December 2, 2011 – Wow I guess I never realized that attorney advertising was a hot topic. Maybe I am not understanding the issue fully because it seems like there have always been ads for attorneys on television.

 

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