Last week, the Second Circuit heard arguments in the State's appeal of NDNY's Judge Scullin's ruling that 4 of the previously enacted provisions regarding lawyer advertising were unenforceable.
A summary of Judge Scullin's prior ruling can be found in this prior blog post.
As reported in this New York Law Journal article, the appellate judges appeared skeptical that Judge Scullin erred in his ruling.
Within minutes of the start of the hourlong argument in the Second U.S.
Circuit Court of Appeals, all three members of the panel had swept past
the state's main argument that the restrictions are outside the reach
of free speech protection. Instead, they zeroed in on the issue of
whether the restrictions were narrowly tailored to their intended
However, the judges -- Sonia Sotomayor, Guido Calabresi and John M. Walker Jr. -- appeared skeptical of the challengers' claim that Northern District Judge Frederick J. Scullin had erred when he sustained a 30-day moratorium on all forms of communications aimed at mass disaster victims and at other possible personal injury claimants.
Also of interest is that on April 1, 2009, new rules of professional conduct will go into effect in New York as described here and codified here. Much of the language regarding lawyer advertising can be found in Rule 7.1.
I haven't reviewed the new rules extensively at this point, but they appear to adopt much, if not all, of the language from the disputed rules regarding lawyer advertising.
I haven't heard anyone discuss the relevance of the rules that will go into effect in April in regard to the issues raised in this appeal. Is the Second Circuit appeal, or at least certain aspects of it, rendered moot by the new rules?
It would seem that if the Second Circuit upholds the unconstitutionality of the provisions at issue, then the mirror provisions in the new rules would be likewise unconstitutional. However, if the language is not identical, would it then require the filing of another lawsuit challenging the newest set of ethical rules, if it could be argued that the new rules are slightly different than the old ones?
Your guess is as good as mine.