A federal judge on Friday declined to dismiss a challenge to the constitutionality of New York state's new rules on attorney advertising.

Northern District of New York Judge Frederick J. Scullin Jr., sitting in Syracuse, set June 18 for the beginning of a trial on the constitutionality of the state's new guidelines on attorney advertising.

The new rules, adopted by the presiding justices of the four Appellate Divisions, went into effect Feb. 1. They are being challenged by the personal injury firm Alexander & Catalano of Syracuse and Rochester, that firm's co-founder James L. Alexander and Public Citizen Inc., a Washington, D.C.-based advocacy group founded by Ralph Nader in 1971.

After a hearing, Judge Scullin denied the state's motion to dismiss in Alexander v. Cahill, 5:07-CV-00117. Ruling from the bench, he also reserved judgment on the plaintiff's motion for a preliminary injunction against enforcement of the rules and told the parties to prepare for an expedited trial.

"It is a great victory for us because it will allow us to get a final determination of the constitutionality of these rules pretty quickly," Gregory A. Beck of the Public Citizen Litigation Group who argued Friday for Public Citizen and the Alexander & Catalano firm said in an interview. "Every day that goes by is another day that those First Amendment rights are being violated."

The new rules, embodied in New York's Code of Professional Responsibility at 22 NYCRR §1200, were adopted after much debate within the legal community in 2005 and 2006 over whether initial proposals were overly restrictive (NYLJ, Oct. 2, 2006). Revisions were made to the rules to address negative comments the presiding justices received from the Federal Trade Commission, a group of attorneys calling themselves New Yorkers for Free Speech, First Amendment expert Floyd Abrams and others (NYLJ, Jan. 5, 2007).

Nevertheless, Beck in the suit filed Feb. 14 contends that the rules place "onerous" restrictions on both commercial and noncommercial speech and violate the First and 14th Amendments to the U.S. Constitution. His group also objects to a provision barring counsel from contacting potential clients or their families for 30 days after a personal injury or wrongful death, arguing that it could prevent civil justice groups from helping clients who have been injured by authorities while at political demonstrations.

The complaint argues that the guidelines' prohibition against the portrayal of a judge in ads, the use of a nickname by a firm that implies a special ability to get results or the use of elements designed to "obtain attention" that are not relevant to a consumer's selection of counsel inhibit flamboyant marketing themes that Alexander & Catalano has spent "significant" sums developing over the past decade.

The new rules focus too heavily on the content of ads rather than their accuracy and are "solely motivated by a general distaste for certain forms of lawyer advertising," especially by personal injury firms, the complaint argues.

'INFORMATIVE' ADVERTISING

Alexander & Catalano had billed itself in most of its advertisements as "heavy hitters" but has abandoned the motto for fear of running afoul of the rules' prohibition against implying the ability to obtain results. It and Public Citizen argue, however, that "heavy hitter" means only that the firm is expert in its area of practice -- personal injury and wrongful death cases -- and is not a boast that it is more apt to win settlements.

Another upstate personal injury specialty firm, Martin Harding & Mazzotti of Latham, also has stopped referring to itself by the "heavy hitters" moniker in TV and print ads to avoid violating the new advertising guidelines, partner Paul Harding said in an interview. Harding is aware of the suit but is not involved.

According to the complaint, the Alexander firm received more than 42,000 calls between 2001 and 2006 from potential clients. Fewer than 10 were complaints about the firm's splashy TV commercials.

"The cumulative effect of the amendments is to prohibit a wide range of potentially interesting and informative commercial advertising by plaintiffs and by other lawyers and law firms that has no potential to confuse or deceive consumers," the plaintiffs' complaint says. "These advertisements are especially relied on by consumers of moderate means who may not be experienced consumers of legal services and who are underserved by other attorneys."

Assistant Attorney General Patrick F. MacRae argued before Judge Scullin that the suit should be dismissed on a series of grounds. They include the state's contention that Public Citizen is not a corporation licensed in New York state and should not have standing to bring a suit in either state or federal court here. Scullin also rejected the state's argument that the plaintiffs named the wrong defendants in their suit.

The "Cahill" named in the title of the complaint is Thomas J. Cahill, chief counsel for the Departmental Disciplinary Committee for the Appellate Division, 1st Department. The complaint also names as defendants the chief counsels of the disciplinary or grievance committees of the other Appellate Division departments and judicial districts.

'PATENT FALSITIES'

MacRae has argued that the counsel act as the attorneys to the grievance committees, but have no independent authority to discipline attorneys for violations of the Code of Professional Responsibility. As such, they have no "real interest" in the effect of litigation that may be brought against attorneys for misconduct, a state memorandum of law contends.

As to Alexander & Catalano's heavily run commercials, the state's memorandum says they are rife with "patent falsities" and "absurdities."

"Irrespective of whether Plaintiffs intend their commercials to be humorous, it cannot be denied that there is little likelihood that they were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style," the state argues.

Among the "disturbing misrepresentations" in the Alexander & Catalano ads, the memorandum says, is one in which an alien says it was told there was "no way" an insurance company would cover damages to its space ship. Alexander then appears, saying, "Then we'll get them to say 'yes, way.'"

The memorandum says this statement suggests that the insurance company can be compelled to pay by Alexander & Catalano, a violation of the new guidelines.

MacRae did not return calls for comment after Friday's hearing.

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