In a brief dated yesterday, New York’s Attorney General responded to the lawsuit brought by Public Citizen and an upstate law firm to challenge the new adverting rules for attorneys (see: Skadden Website and Others Named In Ethics Lawsuit). The reply brief was emailed to me and can be found here: ResponseMemo.pdf

One of the subjects I had harped on was how vague the rules were, so that it was impossible to know if they were being violated or not. This one in particular, prohibited:

“techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence.” 22 NYCRR 1200.6(c)(5)1

Having pondered that question when I wrote Is My Family Photograph An Ethical Violation in New York?, I opened the brief and did a search for the word “vague” to see how the State responded to the plaintiff’s brief on the critical subject.

But my search came up blank. The State didn’t respond to the issue, which speaks volumes to me on how indefensible the point is.

In fact, the first point they make — and indeed it appears to be the only one outside of the procedural issues that fill most of the brief — is that the ads at issue were false. Why? Because the State has taken the position that humor is not allowed. Think I’m kidding? Here it is at pp. 12-13 of the brief:

Defendants suggest to the Court that the advertisements submitted by Plaintiff are not a complete catalog of their television advertisements. However, in just the few submitted there are patent falsities. Irrespective of whether Plaintiffs intend their commercials to be humorous, it cannot be denied that there is little likelihood that they were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style. These absurdities, however, are not the most disturbing misrepresentations to be found in these advertisements.

In the alien advertisement, Plaintiffs suggest that damage to the alien’s spacecraft should be paid for by an insurance company, to which the alien responds that the insurance company said “no way.” In response, suggesting that this space vehicle insurance company can be compelled to pay for damages (without any indication of legal liability), attorney Alexander responds by saying “then we’ll get them to say ‘yes, way'” followed by attorney Catalano saying “because we’re the heavy hitters.”

Without support of any kind, Plaintiffs claim that use of the term “heavy hitters” only suggests their knowledge of the field in which they practice. However, a “heavy hitter” is defined as either “a baseball player who makes many extra base hits [or] a very important or influential person.” Webster’s Encyclopedic Under Bridged Dictionary of the English Language, 1996. Rather than suggesting knowledge, Defendants submit that the use of the term in conjunction with a suggestion that they are able to compel an insurance company to make a payment, without even the slightest suggestion that any such payment would require some legal basis, serves more to mislead the uninformed public to believe the “heavy hitters” can bring to bear certain powers or influence that have no relationship to their knowledge or the facts of the case at hand. The falsity of the advertisements, alone, are sufficient to warrant restriction.

Now I am not a fan of most attorney advertising, and I don’t do any other than my web site, and these ads in particular seem not only sophomoric, but an embarrassment to the profession. But there is a First Amendment issue at stake. And if the State wants to ban something, it must be specific as to what it is banning. And this was not done.

So there it is, the ultimate lawyer joke, brought to you New York Attorney General Andrew Cuomo: Humor has now been banned.

For more information on the subject:

• New Attorney Advertising Rules (Is This Blog an Advertisement?) (this site);
• New York Attorney Advertising Rules (Sui Generis, numerous posts); and
• Are Law Firm Web Site Attorney Advertising? (WSJ Law Blog).

Update, 4/2/07: From f/k/a, many links and comments on attorney advertising issues from around the country: the bar’s self-importance is undignified (tasteless, too)

Big Law will have their websites before a federal judge in the controversy over New York’s new ethics rules. This results from a lawsuit filed by Public Citizen and an upstate New York personal injury law firm that advertises heavily as the “heavy hitters,” for a preliminary injunction against the rules. The court will be challenged due to the vagueness of the rules, as well as the problem of selective enforcement on attorneys depending on their area of practice

One of the issues before the court is this provision, that prohibits:

“techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence.” 22 NYCRR 1200.6(c)(5)1

Thus, the issue is not simply ads in poor taste, but rather, any attention getting technique. I had addressed this problem previously on January 24th with, Is My Family Photograph An Ethical Violation in New York? Since virtually every graphic or photograph on a law firm’s web site is “unrelated to legal competence,” the rule is utterly vague as to what is actually forbidden, thereby raising constitutional conflicts.

The following law firms have now had their website cited in this complaint as potentially being in violation of the attorney advertising rules (in the order they appear in the brief):

• Skadden, Arps, Slate, Meagher & Flom (for displaying a dramatic red design scheme, photographs, and animation);
• Sullivan & Cromwell (featuring a picture of a mountain);
• Davis Polk & Wardwell (featuring depictions of moving people as blurs);
• Blank Rome (displaying flashing photographs suggesting competence, including gymnasts flying through the air, chess pawns, and a $5,000 bill)

It is not just vagueness that is at issue. Plaintiffs’ brief, citing to Judge Eugene Pigott — who had been one of the presiding justices that formulated the rules and has now been elevated to New York’s Court of Appeals — conceded that the rules were not intended to be applied uniformly:

Indeed, Justice Pigott, in his public comments about the rules, acknowledged that the presiding justices had not considered how some of the rules would be applied to “the big firms in New York,” noting that “[w]e’re thinking about the ads that you and I see at night.” Although Justice Pigott claimed that the rules do not “target any area of practice,” he admitted that it was only “very limited areas of practice” that he was concerned with in adopting the amendments and that it was “obvious to all of us the areas that seem to attract the most egregious ads.”

As set forth succinctly in the brief:

Due process prohibits vague regulations for two interrelated reasons: (1) to provide fair notice so that individuals may steer clear of unlawful conduct, and (2) to provide explicit standards to authorities to prevent arbitrary and discriminatory enforcement.

It should be noted that prior to the new rules that went into effect on February 1st, New York already had rules against false and misleading advertising. According to a New York State Bar Association report cited in plaintiffs’ brief, about 1/3 of randomly selected ads were in violation. The problem was a lack of enforcement. But instead of additional enforcement, yet more rules were made, even more unenforceable than the prior ones.

It seems that New York’s judiciary wants to prohibit ads that are in bad taste, but has well exceeded such a goal. And while that may be a laudable objective to many, actually defining it is another matter. The new rules simply seem to be another version of the vague, “I know it when I see it.”

(copy of brief via Sui Generis)
Additional links:

• Consumer Law & Policy Blog (Public Citizen)
• New York State Bar Association (with a blacklined copy of the rule changes)
• Rudy Giuliani Finally Complies With New York Ethics Rule (this blog, with additional links)