2nd Circuit ruling is a win for legal specialists, public

Thursday, March 8, 2012

A New York rule requiring attorneys who identify themselves as specialists to include prominently displayed disclaimers on advertising violates the First Amendment, a federal appeals court has ruled.

The March 5 decision in Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District represents a victory for the First Amendment, attorneys and the public.

The rule in question allowed attorneys who received certification as specialists in an area of law to advertise that fact, but they had to meet certain conditions. Their ads had to identify the certifying organization and state that it was “not affiliated with any governmental authority.” Further, the disclaimer had to say, “Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.”

In the late 1990s Buffalo-based attorney J. Michael Hayes placed two billboard ads, truthfully identifying that he was a civil-trial specialist certified by the National Board of Trial Advocacy. The board’s grievance committee complained to Hayes that the four-inch billboard lettering was too small. Hayes’ modifications to a different color and background seemed to satisfy the committee.

The grievance committee also got after Hayes about his stationery letterhead, on which he indicated he was a “Board Certified Advocate” as opposed to a “Specialist.” The committee said the letterhead required the full disclaimer.  Hayes filed suit in 2000, contending that the rule and its onerous disclaimer requirements violated the First Amendment and were too vague.

“The straw that broke the camel’s back was their insistence on this long disclaimer going on my letterhead,” Hayes told the First Amendment Center Online. “I felt I should be able to advertise I was a specialist, as I had worked very hard to get that certification and did not have room to include a 66-word disclaimer on my letterhead.”

The case had a lengthy procedural history, but eventually a magistrate judge ruled that the New York rule was constitutional and not too vague. Hayes appealed to the 2nd U.S. Circuit Court of Appeals, which reversed the magistrate judge. The two-judge panel – the original third judge, Roger Miner, died in February 2012 – said two parts of the required disclosure posed constitutional problems.

Writing for the panel, Judge Jon O. Newman ruled that the disclaimer statement that certification “does not necessarily indicate greater competence than other attorneys (have)” was especially “problematic.” Some members of the public would be misled into thinking that board-certified attorneys were no more qualified than uncertified ones, he said.

Newman pointed out that those who obtained certification as specialists from the National Board of Trial Advocacy must serve as lead counsel in five trials, actively take part in 100 cases involving testimony, take 45 hours of continuing legal education and devote at least 30% of their practice to the specialized field.

He reasoned that attorneys who accomplish these rigorous requirements may be more qualified than those less trained. He focused on the public interest – saying that the public should not be misled into believing that certified specialization means nothing. The requirement, Newman concluded, “does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.”

Newman and Judge Gerard Lynch also took issue with the part of the rule requiring the disclosure to be “prominently made.” The two judges declared that the rule was unconstitutionally vague as applied to Hayes, who had tried his best to comply with it, including by modifying his billboards. Even though the grievance committee never disciplined Hayes for violating the rule, “the mere existence of repeated and extended investigations of his conduct created a cloud on his good standing as a member of the bar,” Newman wrote.

The New York attorney general’s office said it was “reviewing the decision” and had no comment about any appeal.

It took 12 years for Hayes to achieve vindication. “Every once in a while you get justice,” he said. “I think this a great ruling for the profession. A net result might be that more lawyers will get the specialization and that will be good for the public, who will get better representation.”

“This was a bit of an unintentional crusade,” Hayes said. “It wasn’t supposed to take this long, but I’m kind of a stubborn guy.”

Sometimes it takes a stubborn litigant to advance First Amendment interests in society.

See also: Attorney ads

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