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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 on 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, a 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 in June 2006 to address concern that outrageous and aggressive lawyer ads were misleading the public as well as harming the image of the profession. But Judge Frederick J. Scullin of the U.S. District Court for the Northern District of New York 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,” Scullin wrote. “There is nothing in the record to suggest that a disclaimer would have been ineffective,” he added. 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. Domain-name use 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 July 23 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. The First Amendment challenge was brought by Alexander & Catalano with the assistance of Public Citizen, the Washington-based advocacy group founded by Ralph Nader. In a statement, Public Citizen hailed Scullin’s 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.” New York state officials have indicated they will appeal to the 2d U.S. Circuit Court of Appeals. Michael Colodner, counsel to Chief Administrative Judge Ann T. Pfau, said last week that court administrators have asked New York Attorney General Andrew Cuomo to appeal Scullin’s decision in the case, Alexander & Catalano v. Cahill, No. 07 Civ. 117.

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