Blog: 2nd Circuit backs ‘Heavy Hitters’ law firm

Monday, March 15, 2010

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New Yorkers will continue to see client testimonials, law-firm ads with colorful nicknames and other types of attorney advertising.

That’s because the 2nd U.S. Circuit Court of Appeals has affirmed a lower court ruling against the constitutionality of most of the restrictions originally scheduled to take effect in February 2007. The decision reinforces the fact that when the government seeks to shut down advertising, it bears the burden of proof to show the need for its regulations.

In 2006, New York jurists issued final rules limiting some forms of attorney ads that they found misleading or potentially misleading. These included ads with endorsements and testimonials, portrayals of judges and of fictitious law firms, attention-grabbing techniques unrelated to legal services, and nicknames. The new rules also imposed a broad 30-day ban on attorney communications in all media to victims of a specific incident.

New York attorney James L. Alexander, his law firm Alexander & Catalano, and Public Citizen challenged the restrictions on First Amendment grounds. Before New York adopted the restrictions, Alexander’s firm often used the slogan “Heavy Hitters” in its ads, in addition to other features that might run afoul of the rules.

In July 2007, a federal district judge invalidated all of the restrictions except the prohibition on ads with fictitious law-firm names and the 30-day ban on targeted communications.

On appeal, the 2nd Circuit unanimously affirmed the lower court in its March 12 opinion in Alexander v. Cahill. The court applied the Central Hudson test, drawn from the U.S. Supreme Court’s 1980 decision Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of N.Y., to evaluate the restrictions on advertising.

The defendants argued that the lower court erred in invalidating the restrictions because the attorney ads were misleading and, under Central Hudson, there is no First Amendment protection for advertising that is false or misleading.

However, the two-judge panel (U.S. Supreme Court Justice Sonia Sotomayor was the original third member but could not participate in the opinion writing because she was elevated to the Supreme Court) determined that at worst the ads were only “potentially misleading.”

The appeals court recognized that under the Central Hudson test the government must show that its restrictions on advertising directly and materially advance the government’s interest in protecting consumers. The New York ad regulators failed to do so, as the “defendants have not submitted any statistical or anecdotal evidence of consumer problems with or complaints of the sort they seek to prohibit.”

Testimonials can be misleading but not all of them are. Ads that describe lawyers as “heavy hitters” or “big time” are examples of puffery that the American public expects from advertising. As the appeals court wrote, “there is a dearth of evidence in the present record supporting the need” for the prohibition on nicknames.

The appeals court did uphold the 30-day restriction on attorney communications, as a result of the Supreme Court’s 1995 decision in Florida Bar v. Went-for-It, where a bare majority of the Court upheld a 30-day restriction on direct-mail solicitation letters. The decision was regrettable, as it limited attorney communication to clients at the very time when they need it most.

However, upholding this restriction does not detract from the overall message of the 2nd Circuit’s decision protecting a wide swath of attorney advertising. Those who seek to impose greater speech restrictions on attorney advertisers should remember the Court’s words in the seminal commercial-speech decision Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, (1976) where the Court wrote “that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.”

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