Legal Marketing & SEO Blog

The U.S. District Court for the Northern District of New York granted a permanent injunction against a number of the amended rules on attorney advertising that had become effective in February, finding portions of the new rules unconstitutional as protected free speech under the First Amendment. In particular, the court enjoined the enforcement of Disciplinary Rules of the Code of Professional Responsibility contained in N.Y. Comp. Codes R. & Regs. tit. 22, SS 1200.6(c)(1), (3), (5), (7), and (g)(1). These include rules against the use of client testimonials, the portrayal of judges, attention-getting techniques, nicknames and mottos, and Internet pop-up ads.

The suit was brought by Public Citizen and member attorney James L. Alexander and his law firm, Alexander & Catalano. Alexander & Catalano had been required to change its advertising earlier this year to comply with the more restrictive rules.

New York's Code of Professional Responsibility for lawyers is designed to protect consumers by prohibiting false and misleading lawyer advertisements. The court found that although the state has a substantial interest in encouraging the clean flow of truthful, helpful, relevant, verifiable information about attorney services, it had failed to show that the amendments on client testimonials, attention getting and the use of nicknames and mottos materially advanced the state interest, and that the amendment on the portrayal of judges was narrowly tailored in advancing that interest. Further, the court rejected the defendant's assertion that the restriction on pop-up ads was necessary because of their fleeting nature, explaining that there is no evidence that the regulation of pop-up or pop-under ads is any more difficult than regulating TV, radio or Websites.

The court upheld rules on use of deceptive domain names and the thirty-day moratorium on contacting victims, their families or representatives.

Public Citizen also challenged the rules' application to non-commercial speech, such as offers by lawyers to represent clients pro bono in civil rights cases, and the court construed the challenged amendments not to apply to nonprofit legal services.

References:

Read the Federal Court decision and filings by both parties.

Read the statement from New York State Bar President Kathryn Grant Madigan in response to the court decision.

Read Public Citizen's press release in response to the decision.