Nearly five years after the courts first sought tough new restrictions on attorney advertising in New York (NYLJ, June 15, 2006) a stripped down version of the proposal that survived court scrutiny has been adopted. The amendments to Rule 7.1 of the Rules of Professional Conduct were approved last month by the four presiding justices of the Appellate Division departments.

Opponents of the original rules argued in a federal court action, Alexander v. Cahill, 07-3577-cv, 07-3900-cv, that content-based restrictions in the rules violated their First Amendment rights. The U.S. Court of Appeals for the Second Circuit agreed that lawyers could not be prevented from using in their advertising colorful descriptive monikers, such as “Heavy Hitters,” or from selling pop-up ads on their websites (NYLJ, March 16). The court upheld a provision of the rules, which bars ads from portraying a “fictitious law firm” or “the use of a fictitious name to refer to lawyers not associated together in a law firm,” saying that the technique was “actually misleading” and not entitled to First Amendment protection.

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