The dust is now settling a bit since Judge Scullin handed down his decision last week which declared a number of the recently enacted New York lawyer advertising rules unconstitutional and enjoined their enforcement. If you haven't already seen it, the court's decision can be found here.
Just as I predicted, the State has announced its intention to appeal to the Second Circuit Court of Appeals, as reported by Eric Turkewitz at the New York Personal Law Blog and in this New York Lawyer article.
And, the New York Law Journal offers an extensive analysis of the issues involved in this article, which also includes quotes from many of the relevant players.
On July 24th, the New York State Bar Association issued a statement regarding the decision, which can be found here. From that statement:
“Our Task Force on Lawyer Advertising began its work two years ago to address the dual concerns of protecting the public from false or misleading advertising or solicitation by attorneys while recognizing the legitimate interests of lawyers in informing the public about legal services. We are gratified that the Court has recognized this balance of interests and we are in agreement with the Court's decision, which in many areas referenced the analysis provided by our Task Force. Going forward, we welcome the opportunity to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.”
Kathryn Grant Madigan, the current president of the NYSBA offers more insight here, including a summary of the rules upheld and those which were declared unconstitutional:
The following provisions of the Disciplinary Rules have been held unconstitutional, and the grievance committees are enjoined from enforcing them:
DR 2-101(C)(1) - endorsements/testimonials from current clients;
DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc.;
DR 2-101(C)(5) - techniques irrelevant to selection of counsel (e.g., a law firm appearing as baseball players);
DR 2-101(C)(7) - nicknames/monikers/mottos that imply an ability to achieve results;
DR 2-102(G)(1) - use of pop-up/pop-under advertisements.
The following provisions have been upheld:
DR 2-102(E) - domain name limitations;
DR 2-103(G) - 30-day rule re solicitation;
DR 7-111 - Communications after personal injury/wrongful death.
Blog posts of note regarding the recent decision include:
- Legal Blog Watch: N.Y. Advertising Laws Held Unconstitutional
- New York Personal Injury Law Blog: NY Advertising Rules Found Unconstitutional By Federal Judge
- f/k/a:federal court decimates NY lawyer ad rules and heavy hitters back on deck
- Real Lawyers Have Blogs: New York lawyer advertising rules declared unconstitutional
My prior posts on this issue can be found here.