ALBANY – The state’s inability to defend some of the most controversial new guidelines on attorney advertising from constitutional challenge reflects the weak rationale for adopting the rules in the first place, opponents of broad restrictions say.

And unless the state obtains a stay on the permanent injunction Northern District Judge Frederick J. Scullin Jr. imposed on enforcement of several provisions in the guidelines, the drumbeat of advertisements featuring the “heavy hitters” and firms using similar monikers will be back on the airwaves. No stay had been requested as of yesterday.

Judge Scullin’s ruling declared five of the lawyer advertising rules unconstitutional, including the use of a nickname or motto, the portrayal of a judge, testimonials from clients in pending cases and a lawyer’s claim to possession of characteristics that have nothing to do with legal competence ( NYLJ, July 24). He also found unconstitutional a prohibition against an attorney’s use of a pop-up or pop-under advertisement on a Web site other than the firm’s own site.

The judge noted that the state “did not submit any statistical or anecdotal evidence of consumer problems with or complaints about misleading attorney advertising.”

Despite the ruling, the bulk of the advertising guidelines that went into effect on Feb. 1, 2007 are still in force. They include a prohibition against making claims promising clients future results and comparing a firm’s services with another. If actors are used in commercials or if people are being paid to make testimonials, that has to be disclosed under still-valid provisions.

Floyd Abrams, who in 2006 represented a group opposed to the guidelines, said the lack of hard evidence to back the state’s case does not bode well for the state’s planned appeal of Judge Scullin’s ruling to the the U.S. Court of Appeals for the Second Circuit.

The decision “exposes the reality that there appears to have been almost no empiric basis for the adoption of almost any of these rules,” Mr. Abrams, of Cahill Gordon & Reindel, said in an interview yesterday.

“Having considered litigation about certain provisions which had been in an earlier draft [of the guidelines] and then were dropped, I am surprised that there appears to be so little basis offered in support of the statute that did pass,” Mr. Abrams said. “There apparently is a total failure of proof on virtually every provision at issue.”

The guidelines were formally proposed in spring 2006 by the four presiding justices of the Appellate Division departments. They grew, in part, from recommendations made by a New York State Bar Association task force chaired by Bernice K. Leber of Arent Fox in Manhattan.

The guidelines immediately caused controversy ( NYLJ, Oct. 2, 2006), prompting the presiding justices to extend a 90-day comment period by two months in 2006, and then put off implementation until Feb. 1 to give attorneys time to adjust. The rules were amended to address complaints that they were overbroad and would prohibit some activities by attorneys, such as writing columns for legal trade publications, as improper advertising ( NYLJ, Jan. 5).

None of the five provisions that Judge Scullin found objectionable were in the bar association task force recommendations but were later added by the presiding justices.

Two provisions challenged by the plaintiffs in Alexander v. Cahill, 5:07-cv-117, were upheld by Judge Scullin. They are a prohibition against attorneys soliciting business from those injured or the relatives of those killed within 30 days of accidents and a requirement that a firm’s domain name does not imply an ability to obtain results for clients or violate other disciplinary rules.

The decision appears on page 29 of the print edition of today’s Law Journal.

Task Force Guidelines

Ms. Leber said the task force’s study of the advertising guidelines, and the presiding justices’ subsequent rules, were worthwhile endeavors. Most of the guidelines that were not challenged and are still valid parallel recommendations made by the bar association task force, she said.

“The advertising rules had not been reviewed for over 30 years,” Ms. Leber said in an interview yesterday. The task force was able to strike a balance between an attorney’s right to advertise and the public’s right to be protected from misleading advertisements, she said.

A. Vincent Buzard, the state bar president who appointed the lawyer advertising task force, said the frequent references to the panel’s work in Judge Scullin’s ruling and his upholding of two provisions advanced by the task force were “reassuring.”

“The great bulk of our recommendations were not challenged,” said Mr. Buzard, of Harris Beach in Rochester.

Current state bar President Kathryn Grant Madigan said the rules are most important to personal injury lawyers in upstate New York and to attorneys advertising with circulars in newspapers in non-English speaking communities in the New York City area.

“Corporate counsels are not terribly concerned about lawyer ads,” said Ms. Madigan, of Levene Gouldin & Thompson in Binghamton. “To the personal injury lawyer on Main Street, this is a bread-and-butter issue.”

High rates for advertising time keep most lawyer ads off the airwaves in the New York City area, Ms. Madigan said. Upstate, however, “You can’t turn on the television in the middle of the afternoon and not be peppered with personal injury advertising,” she said.

‘Heavy Hitter’ Returns

James L. Alexander, a partner in the Syracuse firm of Alexander & Catalano and the lead plaintiff in the attorney advertising case, said his firm has just taped ads featuring testimonials from clients and will begin airing them on Monday, with the nickname “heavy hitters” back as a tagline.

Mr. Alexander said he expects the firm’s more flamboyant advertisements to return to the airwaves in light of Judge Scullin’s ruling. Those ads included spots where Alexander & Catalano attorneys are shown as giants dwarfing city buildings and as lawyers offering their services to aliens.

“We did change our commercials following Feb. 1,” said Mr. Alexander, who was joined in his suit by Public Citizen, a Ralph Nader-founded group that has challenged lawyer advertising rules in other states. “We stopped using the moniker ‘The Heavy Hitters.’ We toned down the entertainment in the commercials so we did not appear as giants or running at superhuman speed. The new rules were scary. They were vague. . . . There never was a legitimate basis to adopt those content-based restrictions.”

Martin Harding & Mazzotti of Latham in Albany County also dropped the “heavy hitters” tagline as of Feb. 1. Partner Paul B. Harding said yesterday that after Judge Scullin’s ruling, the firm was trying to decide between again being “heavy hitters” or to use another nickname: “Team 24/7.”

The “heavy hitters” tagline “did stick a lot more than we thought it would,” Mr. Harding said. “We used it for about five years and I am not sure people actually realized we stopped using it. Our numbers [of calls] didn’t fall off.”

Removal of the five provisions from the guidelines puts New York attorneys in line with their counterparts in most other states when it comes to advertising restrictions, said Gregory Beck, the Public Citizen attorney who argued before Judge Scullin. The rules are no longer “egregious” as they were, Mr. Beck said.

“That is a lesson to be learned by states and bars,” he said. “There are limits on what you can do and those limits are imposed by the First Amendment. If you are going to set out to limit free speech, you’ve got to have a really good reason to do it.”

Judge Scullin did not endorse over-the-top attorney advertisements. In a footnote, he bemoaned the “proliferation of tasteless, and at times obnoxious” attorney ads. It is “commendable” that the Appellate Division departments have attempted to prohibit excesses in such advertising, the judge wrote, but they must make sure the “regulation of such advertising is accomplished in a manner consistent with established First Amendment jurisprudence.”

The presiding justices are prohibited from commenting on Judge Scullin’s ruling because it is a still-pending legal matter.

Eugene F. Pigott Jr., formerly Fourth Department presiding justice, was one of the strongest advocates for the new advertising guidelines when they were introduced last year. He was subsequently elevated to the Court of Appeals by former Governor George Pataki.

During an appearance in January at the state bar’s annual meeting, Judge Pigott said he found some attorney advertising misleading and demeaning to the profession.

“We were concerned about lawyers who wanted to give the impression that they are the best, when they were often quite young and inexperienced,” he explained. “What you and I do as lawyers is serious. And on TV are these pop-ups who made a joke out of it.”

Judge Pigott would have no comment on Judge Scullin’s ruling, Court of Appeals spokesman Gary Spencer said yesterday.

- Joel Stashenko can be reached at jstashenko@alm.com