"VICTORY IS OURS!"
On July 20, 2007, in a 30-page decision, Judge Frederick J. Scullin, Jr., Senior United States District Court Judge of the Northern District of New York, enjoined and restrained the four Presiding Justices of the New York State Appellate Divisions from enforcing large chunks of the attorney-advertising restrictions that had been recently promulgated.
While Judge Scullin found that the Justices had a "substantial interest to ensure that attorney advertisements are not misleading," they failed to show how their restrictions "materially advanced" that goal.
Ironically, our state court judges did not support their position with the requisite evidence, such as "statistical or anecdotal evidence of consumer problems with or complaints about misleading attorney advertising." In fact, the federal court described the record in that regard as "notably lacking."
In addition, the state court judges were unable to show that the restrictions were "narrowly tailored." In other words, Judge Scullin was of the belief that most of the restrictions were "broader than reasonably necessary."
As a result, the following provisions were stricken as unconstitutional:
DR 2-101(C)(1) - endorsements/testimonials from current clients;
DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc. (the court thought a disclaimer would be sufficient);
DR 2-101(C)(5) - techniques irrelevant to selection of counsel (e.g., a law firm appearing as baseball players);
DR 2-101(C)(7) - nicknames/monikers/mottos that imply an ability to achieve results; and
DR 2-102(G)(1) - use of pop-up/pop-under advertisements.
Only the following provisions were upheld:
DR 2-102(E) - domain name limitations;
DR 2-103(G) - 30-day moratorium on contacting victims; and
DR 7-111 - communications after personal injury/wrongful death.
Our congratulations to Public Citizen Litigation Group for its outstanding work and our thanks for its ardent advocacy on behalf of all New Yorkers.
For a copy of the federal court decision, please use this link: Alexander v. Cahill
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For our other blog posts on this topic, please use this link: Attorney Advertising