In February, new advertising rules, part of the State's disciplinary rules for New York lawyers became effective. Now the first court opinion has been issued which holds some of those rules to be unconstitutional, and enjoins the state's grievance committees from enforcing them. The decision came in the case of Alexander v. Cahill, decided in the the U.S. District Court for the Northern District of of New York.
While the decision held that some of the provisions of the Disciplinary Rules are unconstitutional, it upheld other provisions. DR 2-102(E), which imposes limitations on domain names that can be used by lawyers and law firms has been upheld. In addition,
DR 2-103(G), imposing a 30-day rule on 'solicitation', and DR 7-111 which lilmits communications after personal injury or wrongful death, were also held to be constitutional.
The provisions of the Disciplinary Rules that have been held unconstitutional are: DR 2-101(C)(1), prohibiting endorsements or testimonials from current clients; DR 2-101(C)(3) banning the use of portrayals of judges or fictitious law firms, and prohibiting the use of fictitious names; DR 2-101(C)(5), which prohibits the use of techniques not relevant to selection of counsel, including the portrayal of lawyers 'exhibiting characteristics not relevant to legal competence'; DR 2-101(C)(7) regarding the use of nicknames or
The Court's decision specifically notes that the First Amendment applies to attorney advertising, regardless of the State's interest in regulating commercial speech and applied the test set forth in Central Hudson Gas & Elec Corp. v. Pub Svc Comm of NY, 447 US 557 (1980) to determine whether the regulations were permissible under the First Amendment.
The standard set forth in Central Hudson requires that the State: show a substantial state interest to be served by regulating the speech, demonstrate that the restriction materially advances the State interest, and establish that the restriction is narrowly drawn. According to the court, the State must have some form of empirical or anecdotal evidence to demonstrate that the potential harm is real and that the restriction will actually alleviate the harm.
The Court agreed with the State and held that the State had a substantial interest in protecting consumers from misleading advertisements, and noted that the State had a broader right to establish standards with regard to licensing professionals and regulating their practice. However, with regard to some of the provisions, the Court found that the State did not provide any evidence of consumer complaints or problems indicating that the attorney advertising was misleading.
The Court also found that some of the provisions of the Disciplinary Rules were not narrowly stated and the State did not show that lesser restrictions (including requiring a disclaimer) would not have been effective. The Court also noted that the State failed to show how better enforcement of existing rules, rather than adding new restrictions would be insufficient to meet the State's goals.
This decision is certainly not the end of the road when it comes to this issue in New York. According to the New York State Bar Association, the court system will appeal the decision to the U.S Court of Appeals for the Second Circuit and seek relief from the injunction. However, the decision may provide some hints about what the future will bring, and how the state can re-draft the rules or argue successfully on appeal.
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