The United States Court of Appeals for the Second Circuit struck down another portion of New York's ethical rules governing lawyer advertising which required lawyers who identify themselves as certified specialists to include a prominent disclaimer stating that certification is not required to practice law and does not indicate greater competence. The decision was rendered March 5, 2012.
J. Michael Hayes, a trial lawyer from Buffalo, New York, was board certified in trial advocacy by the National Board of Trial Advocacy in 1995. His firm letterhead noted the certification, but did not include a disclaimer. Hayes also ran billboard ads which did include the disclaimer, although the Grievance Committee questioned whether the disclaimer was prominent enough. The Grievance Committee began an investigation and Hayes brought suit challenging the constitutionality of the disclaimer rule.
The Western District of New York, who initially heard Hayes' challenge, upheld the New York rule, stating that the State had a substantial interest in protecting consumers from potentially misleading attorney advertisements, but the Second Circuit reversed on appeal. The Second Circuit opinion noted that as written, the disclaimer required by the rule may defeat its purpose by creating misunderstandings, rather than dispelling them.
The rule Hayes was alleged to have violated is Rule 7.4, (and its predecessor, Disciplinary Rule 2-105(C)(1) of New York’s Code of Professional Responsibility), which states:
A lawyer who is certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association may state the fact of certification if, in conjunction therewith, the certifying organization is identified and the following statement is prominently made:
“ The [name of the private certifying organization] is not affiliated with any governmental authority
 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.”1
The Second Circuit did uphold the first part of the rule, requiring attorneys who advertise that they are certified in a particular field to indicate that the certifying agency is not affiliated with the government. But they struck down the second portion of the rule, that the disclaimer include a statement that certification is not a requirement for the practice of law, holding that it was unlikely that the general public would be misled into thinking that only attorneys with a certified specialty were lawfully practicing law in New York.
Finally, the Second Circuit addressed the third requirement, that the disclaimer state that certification "does not necessarily indicate greater competence than other attorneys experienced in this field of law." The Court found this statement to be "problematic," stating:
In fact, the qualifications of an attorney certified as a civil trial specialist by the NBTA include having been lead counsel in at least 5 trials and having “actively participated” in at least 100 contested matters involving the taking of testimony, passing an extensive examination, participating in at least 45 hours of CLE, and devoting at least 30 percent of the lawyer’s practice to the specialized field. See https://www.nblsc.us/certification_standards_civil/. These qualifications may reasonably be considered by the certifying body to provide some assurance of “competence” greater than that of lawyers meeting only the criterion of having some experience in the field, and a contrary assertion has a clear potential to mislead.
The Court did note that the prominence requirement lacked specificity, but also acknowledged the difficulty of specifying standards when there are so many potential avenues for attorney advertising.The Court opined that there were some circumstances in which any attorney of reasonable intelligence could determine that the advertisement was in violation of the rule (putting the disclaimer in the same color as the background, etc.), and that under those circumstances, the rule would be facially sufficient.
In this case, the Court found that the rule was unconstitutionally applied to Hayes and his billboard advertisement. The fact that representatives from the Grievance Committee were unable to articulate an objective standard for the rule played into the Court's decision.
The Second Circuit did not address the question of Hayes' letterhead, since he had previously advised the Grievance Committee that he would modify it according to the rule, and that issue did not reach the Court.
You can find the opinion at: J. Michael Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District et al, U.S. Court of Appeals for the 2nd Circuit, No. 10-1587.
1. It has been noted in previous decisions that where a Rule of Professional Conduct includes quotation marks, the exact language quoted must be used.