Just one day after a federal judge ruled large parts of New York’s new attorney advertising rules unconstitutional, the State of New York has said it will appeal. Given what I thought were some particularly empty arguments in the briefs by the State, as opposed to those raised by Public Citizen on behalf of itself and an upstate law firm, I find this surprising.

In a squib in today’s New York Law Journal:

The state will appeal a federal judge’s ruling that some new attorney advertising rules violate lawyers’ free speech rights. Michael Colodner, counsel to Chief Administrative Judge Ann T. Pfau, said yesterday that court administrators have asked Attorney General Andrew Cuomo to appeal Northern District Judge Frederick J. Scullin’s decision in Alexander & Catalano v. Cahill, 07 Civ. 117 (NYLJ, July 24). Mr. Colodner said Mr. Cuomo’s office will also be asked to move for a stay of a permanent injunction Judge Scullin issued prohibiting the enforcement of portions of the advertising rules he found unconstitutional. The rules, unveiled by the four presiding Appellate Division justices last June and which took effect Feb. 1, are designed to dignify advertisements by lawyers and to prohibit them from promising to deliver monetarily for clients. Judge Scullin ruled the state had failed to show that barring more flamboyant advertising, such as that done by attorneys who dub themselves ‘heavy hitters,’ would protect the public from misleading attorney promotions. He also observed that less restrictive steps like adding disclaimers at the end of ads might be just as effective as blanket prohibitions of certain kinds of content in the advertisements. New York State Bar Association President Kathryn Grant Madigan said in a statement yesterday that the group agrees with Judge Scullin and wants to work with the appellate divisions to ‘develop rules that strike an appropriate balance within the constitutional framework.’

See also:

Nicole Black at Sui Generis has a huge number of blog postings on this subject going back to June 15, 2006, which can be found at this link: NY Lawyer Advertising Rules.

Greg Beck, the lead lawyer at at Public Citizen that handled the matter, wrote this up the other day, at this link: New York’s Attorney Advertising Rules Held Unconstitutional

Some of my own blog postings on the subject follow, for those that want more:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (1/5/07)
• Is My Family Photograph An Ethical Violation in New York? (1/24/07)
• New York’s New Attorney Ad Rules and First Amendment Issues (1/27/07)
• New York Responds to Lawsuit Challenging New Attorney Advertising Rules — By Banning Humor (1/28/07)
• New York Attorney Advertising Rules – Update (5/29/07)

Addendum 7/27/07 – Upset of Few Attorney Advertising Rules Could Signal Return of ‘Heavy Hitters’ (NY Law Journal via Law.com)

(Eric Turkewitz is a personal injury attorney in New York)

Breaking news from Public Citizen, which brought a suit to have New York’s new attorney advertising rules held unconstitutional:

PUBLIC CITIZEN PRESS RELEASE

New Lawyer Advertising Rules in New York Violate Free Speech, Federal Court Rules

Public Citizen Wins Injunction Against Unconstitutional Rules

WASHINGTON, D.C. – New rules governing lawyer advertising that took effect in New York on Feb. 1 cannot be enforced because they violate the First Amendment right to free speech, according to a ruling issued today by a federal court in New York.

The U.S. District Court for the Northern District of New York ruled in favor of Public Citizen’s request for an injunction against many of the new rules. The organization represented its members and attorney James L. Alexander and his law firm, Alexander & Catalano. The New York firm was forced to change its advertisements to comply with the more restrictive rules.

The new guidelines were part of a revision of the rules contained in New York’s Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. Public Citizen contended in its lawsuit that the rules’ broad language unconstitutionally prohibited truthful communication of information about legal services to New York consumers. The court heard oral argument on June 18.

In a victory for First Amendment rights, the court permanently enjoined enforcement of most of the challenged rules against attorney advertising, including rules against attention-getting techniques, the use of nicknames and mottos, the use of client testimonials, the portrayal of judges and the use of Internet pop-up ads.

“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.”

In today’s ruling, the court held that the advertising at issue in the case was a form of speech protected by the First Amendment, and it categorically rejected New York’s argument that advertising considered by the state to be trivial or irrelevant was not covered by free speech rights. It noted that the state had not produced any evidence that its restrictions on speech were necessary to protect consumers and found that the prohibitions were much broader than necessary to accomplish the state’s claimed objectives.

Public Citizen also challenged the rules’ application to non-commercial speech, such as offers by lawyers to represent clients without a fee in civil rights cases. And in what amounted to another victory for free speech, the court construed the challenged amendments not to apply to nonprofit attorneys.

“The main beneficiaries of this decision are New York consumers,” Beck said. “Truthful advertising promotes healthy competition between lawyers and allows the public to learn about their rights and available legal services.”

To read the decision, visit http://www.citizen.org/documents/alexanderorder.pdf.

To read Public Citizen’s lawsuit and other materials in the case, visit http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=358.

To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project, at http://pubcit.typepad.com/clpblog/advertising/index.html.

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Addendum:

• Greg Beck from Public Citizen, one of the attorneys that handled the matter, has this: New York’s Attorney Advertising Rules Held Unconstitutional;

• Niki Black at Sui Generis, who has had covered this story as it developed, has this:Summary of Sections of NY Lawyer Advertising Rules Affected by Injunction;

• David Giacalone at f/k/a has: federal court decimates NY lawyer ad rules;

My own couple of thoughts:
The state briefs were very weak, and it comes as no surprise that those portions of the new advertising rules that dealt with the content of the advertisements were struck down. It should be noted, however, that the 30-day rule was upheld, prohibiting solicitations within 30 days of a mass tort. (Edit: Links to many of my pre-decision comments can be found off the first link of this post.)

The court had an interesting footnote at the end of the opinion. Why this was buried in a footnote, however, is beyond me:

In sum, the Court notes that it is altogether appropriate for the Appellate Division of the State of New York, having been charged by law with the responsibility of overseeing the professional conduct of attorneys admitted to practice before the courts of New York, to be concerned with the issue of attorney advertising. Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years. New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of he legal profession has been greatly diminished. Although the Court finds it commendable that the Appellate Division of the State of New York and the disciplinary committees that function on its behalf pursue ways to regulate the manner and means by which attorneys who choose to advertise may do so, they must be mindful of the protections such advertising has been afforded and take the necessary steps to see that the regulation of such advertising is accomplished in a manner consistent with established First Amendment jurisprudence.

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2nd Addendum:

More blogs/news on the subject:

• N.Y. Federal Judge Strikes Down Many New Attorney Ad Rules (New York Law Journal)
• New York’s Attorney Advertising Rules Held Unconstitutional (The Bizop News)
• N.Y. Lawyer Ad Rules Struck Down (ABA Journal)
• Federal Judge Nixes Much of New York State’s Restrictive Lawyer Advertising Rules (RiversideViews)
• Feb 2007’s New York lawyer advertising rules reversed (Personal Brand Marketing Blog)
• Lawyers Get Court Approval for Pop-Up Ads on Internet (New York Times)
• Superhero Lawyer Ads Are Ruled Fit for TV (New York Sun)