Sokolove Success Blog – Our Perspective on Legal News that Matters

The 2nd US Circuit Court of Appeals recently rejected most of New York State’s content-based restrictions on attorney advertising by holding that they violated the right to free speech guaranteed by the First Amendment.

There’s a nice analysis of the court’s ruling here at Law.com (subscription required).

While this ruling only directly affects New York’s legal advertising rules, my hope is that it is a wake-up call to the other states with similar restrictions in place.

In its ruling, the court said a number of the state’s regulations on attorney advertising were unconstitutional including:

•    A ban on the use of nicknames like “heavy hitters”
•    A ban on client testimonials about pending cases
•    A ban on the use of special effects, or the image or likeness of a judge

In throwing out these restrictions, the court held that these ad tactics were not “inherently false, deceptive, or misleading”.  More importantly than the ruling on these specific tactics was that the court held that banning protected commercial free speech because it was potentially misleading was not okay.  The speech had to be actually false or misleading.  This is a huge win for those of us who believe that legal advertising restrictions are anti-consumer, anti-competitive and really about protecting turf and the feelings of those members of the profession who find legal advertising distasteful.

If you look at the specific facts of the case involved in the New York decision, you realize what I mean when I say I think it is about taste and not about protecting the consumer.

One commercial showed a judge in a courtroom, who was there to “make sure [the trial] is fair.” Another used wisps of smoke and blue electrical currents to highlight the firm’s name.  Still another firm dubbed itself “heavy hitters,” and ran ads depicting partners as giants towering over buildings and counseling space aliens.  How are any of these advertising methods misleading?

The bottom line is that the 2nd Circuit essentially said it was permissible for attorneys to use the same advertising techniques, imagery, testimonials, etc. as other industries and professions.

There is at least one piece of the decision that troubles me.  The court found that New York’s 30-day moratorium was constitutional as relates to not only the use of targeted mail to specific victims but also indirect advertising such as TV, radio, newspapers and web sites.  No other state takes this aggressive position - at least they haven’t up until now.  Maybe they will miss this part of the wakeup call I hope they get.