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

July 23, 2007

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.”

READ the decision.

READ Public Citizen’s lawsuit and other materials in the case.

READ more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project.