NY Lawyer Knocks State's Strict Advertising Rules

Lawyers in New York, who call themselves specialists, have J. Michael Hayes to thank that they no longer have to include a clunky 40-word disclaimer in all their advertising and marketing materials (just a 14-word one). The U.S. Court of Appeals for the Second Circuit sided with the personal injury lawyer from Buffalo, who challenged New York state’s strict rule on using the term “specialist,” by declaring it unconstitutional.

As detailed in the WSJ Lawblog's summary of the case, Rule 7.4 of the New York Rules of Professional Conduct is more stringent than the American Bar Association’s model rules, which merely require lawyers invoking the specialists title to disclose the name of the certifying organization in all attorney advertising material. In addition to disclosing the name of the accrediting organization in their ads, the New York rule also requires attorneys to display “prominently” the following disclaimers:

[1] The [name of the private certifying organization] is not affiliated with any governmental authority[,] [2] Certification is not a requirement for the practice of law in the State of New York and [3] does not necessarily indicate greater competence than other attorneys experienced in this field of law.

The Lawblog reports that Hayes challenged the rule in 2001 after the New York attorney grievance committee investigated him over two billboard ads he placed in Buffalo in 1999 identifying himself as a specialist. (He is certified by the ABA-approved National Board of Trial Advocacy.) The 2nd Circuit ruled that the second and third parts of the above disclaimer “cannot survive First Amendment scrutiny,” and that the requirement for the disclaimer to be prominently displayed is "unconstitutionally vague."