Parts of a New York rule requiring that attorneys who claim to be certified specialists make prescribed disclosure statements violates the First Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.
Buffalo personal injury lawyer J. Michael Hayes convinced the Second Circuit that there was a lack of clear standards for enforcing Rule 7.4 of the New York Rules of Professional Conduct on attorney specializations.
Mr. Hayes had drawn the attention of the Attorney Grievance Committee in the Eighth Judicial District for inadequate disclosures on his letterhead and on one of two billboards advertising his services in 1999.
Although he was never formally disciplined for running afoul of Rule 7.4, “Identification of Practice and Specialty,” Mr. Hayes was facing potential discipline for his letterhead when he filed an action in the Western District seeking a declaration that the rule was unconstitutional both on its face and as applied.
On March 5, the Second Circuit agreed in Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District, 10-1587-cv, reversing Western District Judge John T. Elfvin’s grant of summary judgment to the grievance committee and the decision of Magistrate Judge H. Kenneth Schroeder, who rejected Mr. Hayes’ void-for-vagueness claim following a bench trial in 2010.
Rule 7.4 allows a lawyer who is certified as a specialist to state that claim in an advertisement if the certifying organization is identified and the following statements are “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 experience in this field of law.”
The grievance committee first contacted Mr. Hayes in 1996, saying it was concerned about his reference to himself as a “board certified civil trial specialist.” Mr. Hayes responded by agreeing to include the name of the board that certified him, the National Board of Trial Advocacy, on both his letterhead and in future phone directory advertisements.
In 1999, Mr. Hayes placed ads on two billboards in Buffalo that contained the disclaimer, but the grievance committee sent him a letter questioning whether the disclaimer on the bulletin board was large enough to meet the “prominently made” requirement.
The committee closed that investigation, but it soon contacted Mr. Hayes again. In May 2000, the committee said it was investigating his disclaimer on the second bulletin board and was beginning an investigation into the appearance of his letterhead.
Mr. Hayes responded that the bulletin board met the standard and he did not need the disclaimer on the letterhead because the letterhead said only he was board certified and did not indicate he was a “specialist.” The committee countered that the use of the word “certified” implied specialization.
Mr. Hayes filed suit in 2001 seeking a declaration against the predecessor to Rule 7.4, DR 2-105 (C)(1).
Judge Elfvin granted summary judgment citing the U.S. Supreme Court’s decisions in Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990) and Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
He found New York State had a substantial interest in protecting the public from potentially misleading attorney ads that was furthered by the rule, and that the rule was narrowly drawn.
Judge Elfvin rejected the claim the rule was vague on its face but agreed there were still issues on whether it was vague as applied.
The parties consented to a bench trial and, when Magistrate Judge Shroeder rejected that claim, Mr. Hayes applied pro se to the Second Circuit, where Judges Jon O. Newman (See Profile) and Gerard E. Lynch (See Profile) and the late Roger Miner heard oral arguments on June 6, 2011.
Writing for the panel, Judge Newman said first that there was “no constitutional infirmity” in the requirement that attorneys who claim to be specialists state that the certifying organization is not affiliated with a governmental authority.
However, he said the second required statement, that certification is not a requirement for the practice of law “is more questionable.”
The defendants justified this requirement on the grounds that the public would believe that a lawyer has to be certified to practice law, Judge Newman said, “thereby leading them to think that they must limit their choice to state-licensed lawyers to those who have been certified as specialists.”
But Judge Newman said this “possible belief” is “sufficiently strained to require some basis in the record to support it.”
The third required statement, that certification “‘does not necessarily indicate greater competence than other attorneys experienced in the field of law’—is even more problematic,” he said.
Judge Newman said some members of the public “might easily think that a certified attorney has no greater qualifications than other attorneys with some (unspecified) degree of experience in the designated area of practice,” when, in fact, the National Board of Trial Advocacy only certifies lawyers who have been lead counsel in at least five trials, who have been an active participant in at least 100 contested matters involving the taking of testimony, who have passed an exam and had 45 hours of continuing legal education and who devote at least 30 percent of their practice to the specialized field.
“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,” he said. “Such a requirement does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.”
Mr. Hayes had argued that his disclaimer on the first billboard was “prominently made” because the lettering was six inches high, one inch higher that the health warnings on cigarette billboards.
Judge Newman said the court could not conclude that a lawyer of “average intelligence” could anticipate that six-inch high disclaimers were not prominently made.
“Although Hayes was never in fact disciplined for violation of the rule, the mere existence of repeated and extended investigations of his conduct created a cloud on his good standing as a member of the bar that was a meaningful adverse consequence to him, and that would clearly chill legitimate advertising by similarly situated lawyers, based on a rule whose contours that a lawyer of ordinary skill and intelligence could not reasonably discern.”
Mr. Hayes said yesterday he felt “personally vindicated” by the decision.
“I felt the rule was inappropriate and was essentially designed to discourage people from getting certified,” he said. “My guess is that certification of lawyers is going to become the norm just as it is with physicians.”
Mr. Hayes said the public will benefit because it will know which lawyers are certified specialists, and more lawyers will seek certification.
“People now are going to start getting certified—I know a lot of attorneys who had thought about it and decided not to do it because they didn’t think they could use it. Now they can use it.”
Assistant Solicitor General Simon Heller argued for the state, which declined comment.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.