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NEW YORK � A federal judge has ruled unconstitutional most of the sweeping new restrictions on attorney advertising introduced earlier this year by the New York courts. The restrictions, which went into effect Feb. 1, had barred lawyers from, among other practices, using nicknames that suggest an ability to obtain results or touting “characteristics clearly unrelated to legal competence.” Alexander & Catalano, the Syracuse, N.Y., personal injury firm that challenged the constitutionality of the advertising restrictions, had previously run ads calling its lawyers “heavy hitters” and showing them towering over downtown office buildings or sprinting at impossible speeds to help clients. The four presiding justices of New York’s Appellate Division, who are charged with overseeing attorney discipline, first unveiled proposed restrictions on attorney advertising last June to address concern that outrageous and aggressive lawyer ads were misleading the public as well as harming the image of the profession. But Northern District of New York Judge Frederick Scullin ruled that the state had largely failed to show that its wholesale prohibitions of certain kinds of content had advanced its interest in protecting the public from misleading lawyer advertisements. Moreover, he said, the state had failed to show less onerous means could not achieve the same ends. “Defendants have failed to produce any evidence that measures short of categorical bans would not have sufficed to remedy the perceived risks of such advertising being misleading,” the judge wrote in Alexander & Catalano v. Cahill, 07 Civ. 117. “There is nothing in the record to suggest that a disclaimer would have been ineffective.” Along with the bans on nicknames and nonlegal characteristics, prohibitions on active client testimonials, portrayals of judges and fictitious law firms and the use of Internet pop-up ads were also struck down as unconstitutional in Scullin’s decision. The judge did uphold a new rule barring lawyers from soliciting clients in specific personal injury and wrongful death cases for 30 days. Noting a similar federal rule applying to aviation accidents and a moratorium adopted in Florida, Scullin said there appeared to be an emerging consensus that such a moratorium was desirable. He also noted that lawyers had ample opportunity to reach the public with general advertising that does not refer to a specific incident.
‘The New York rules went too far in imposing burdensome restrictions on legal free speech that do not protect consumers.’

Greg Beck attorney for Public Citizen

The judge also declined to strike down new rules governing lawyers’ uses of domain names. Though the rules permit lawyers to use domain names that do not include the name of a lawyer or firm, all pages of the Web site must include the actual name of the lawyer or firm. Lawyers are barred from practicing under such domain names and the domain names may not imply an ability to obtain a result or otherwise violate disciplinary rules. Many plaintiffs lawyers use domain names that include the names of controversial drugs, diseases or companies in order to draw clients searching the Internet for information about a particular grievance. The rules that Scullin threw out Monday had already been watered down since the draft proposal was released last year. During a lengthy comment period, many lawyers particularly criticized the initial draft’s definition of “solicitation” as overly broad, potentially covering all communications between lawyers and clients. The final rules adopted by the Appellate Division justices had tightened the definition of solicitation to include only communications aimed at securing business. Bans on testimonials by past clients, celebrity endorsements and voice-overs and depictions of fictionalized events were also dropped before the rules went into effect. Office of Court Administration spokeswoman Kali Holloway declined comment on Scullin’s decision Monday on the grounds that the matter was “still being litigated.” She would not say if that meant the decision would be appealed to the Second Circuit U.S. Court of Appeals. The First Amendment challenge was brought by Alexander & Catalano with the assistance of Public Citizen, the Washington, D.C.-based advocacy group founded by Ralph Nader. In a statement, Public Citizen hailed Scullins’ decision. “The New York rules went too far in imposing burdensome restrictions on legal free speech that do not protect consumers,” said Greg Beck, an attorney for Public Citizen who litigated the case. “The court rightly recognized that the First Amendment prevents states from arbitrarily restricting advertising just because some may find it distasteful.” Anthony Lin is a reporter with the New York Law Journal, a Recorder affiliate.

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