Sui Generis--a New York law blog

Editorial Questions Whether New York's Lawyer Advertising Rules Protect Consumers

On Tuesday, an interesting editorial was published in The Post-Standard regarding New York's lawyer advertising rules, which became effective last February.  The editorial discussed the new rules in the context of the lawsuit challenging the rules that is currently pending in federal court in the Northern District of New York.

The gist of the editorial was that the recently enacted rules do not necessarily serve their intended purpose of protecting legal consumers from "misleading" information.  The editorial also questioned whether consumers actually need more protection than had been provided under the previously existing rules that regulated attorney advertising.

From the article:

It is curious that the state feels the need to protect consumers from lawyers, but not from businesses like pharmaceutical firms. The drug companies' "Ask Your Doctor" ads effectively encourage consumers to distrust their doctors' ability to prescribe the appropriate medication and instead be guided by the pharmaceutical giants. Yet there has been no great effort to regulate that industry...

Shouldn't consumers decide whether they think the "heavy hitters" are indeed heavy hitters unless, of course, the state can prove the firm is engaging in fraudulent practices? Even if it is, the state's existing rules should be sufficient to go after the firm....

Judge Scullin himself seemed to express some reservations about the rules, pointing out that the U.S. Supreme Court has supported lawyers' First Amendment rights. He also wondered whether the state's previous standards were sufficient to regulate law firms. Public Interest and Alexander and Catalano, which has stopped using the "heavy hitter" phase, support the old rules...

The author raises some good points.  However, only time will tell if Judge Scullin truly believes that the new rules go too far.

Judge Reserves Decision in Lawsuit Challenging New York Lawyer Advertising Rules

Greg Beck of Public Citizen, attorneys for the plaintiffs in the lawsuit challenging the recently promulgated lawyer advertising rules, advised me that on Monday, after hearing oral arguments, Judge Scullin reserved his decision. 

You may recall that the trial which had been previously scheduled was canceled, as explained in this post.

This AP article further described the proceedings:

Gregory A. Beck of the Public Citizen Litigation Group contended that the new rules place onerous restrictions on both commercial and noncommercial speech and violate the First and Fourteenth Amendments.

“If you look at the commercials, consumers suffer no conceivable harm,” Beck told Northern District Senior Judge Frederick J. Scullin Jr. “This idea that television somehow brainwashes people doesn't make any logical sense. They are adults, able to make their own decisions.”...

Assistant Attorney General Bridget Holohan told Scullin that advertisements “have to contain relevant, factual, verifiable information because outrageous claims might mislead the public.”

“Giants in Syracuse and aliens marching down the street are not relevant to consumers making decisions,” Holohan said. “We argue where an advertisement is not susceptible to be verified, it's not protected by the First Amendment, The Supreme Court has opened this argument. It's a valid argument. The state's interest is in maintaining professionalism and a free flow of truthful, relevant information. The state has a substantial interest.”

Scullin noted that the Supreme Court has ruled there is First Amendment protection for attorney advertising. “It's not incumbent to show relevancy,” he said. “It's still attorney advertising, which is protected.”

The new state rules were among several revisions embodied in New York's Code of Professional Responsibility. Also banned were Internet pop-up ads and solicitation of clients in chat rooms. Beck asked Scullin to address popups without prohibiting them altogether.

Before reserving his decision, Scullin also asked if it was possible for the state to use the existing rules.

Once I learn of the judge's decision, you'll be the first to know.

D-Day For NY Lawyer Advertising Rules Lawsuit?

As I'd posted previously, D-day for the Lawsuit challenging the New York lawyer advertising rules is June 18, 2007.  The parties stipulated to the facts and waived the trial that had been previously scheduled.  Instead, the plaintiffs have cross-moved for summary judgment, and on June 18th, at the very least, the Court is expected to rule on the motion for a preliminary injunction, and may possibly offer a ruling on the motions for summary judgment as well.

Available for your perusal are the following documents:

• Plaintiffs' memorandum in support of their Motion for Summary Judgment

• The Stipulations of Fact

• The State's memorandum in opposition to Plaintiffs' Motion for Summary Judgment

• Plaintiffs' memorandum in response to the State's memorandum in opposition response_memorandum2

Additional coverage can be found here at the New York Personal Injury Attorney Law blog.

New York Attorney Advertising Rules Lawsuit--Update

The trial for the lawsuit challenging the New York lawyer advertising rules that was scheduled for June has been canceled.  The reason for the change, as explained at the New York Personal Injury Law Blog, is that, per Greg Beck of Public Citizen, counsel for the plaintiffs:

We had a trial scheduled on June 18, but since then we agreed that there were no disputed facts and cross moved for summary judgment. We have oral argument on June 18 instead of trial. We also have our [preliminary injunction] motion still pending, and there's a good chance the judge will at least rule on that, if not on the summary judgment motion, on June 18th....
Opening briefs are attached along with stipulated facts. Response briefs are due Friday.

The New York lawyer advertising rules, which can be found here, became effective as of February 1, 2007. 

My prior posts on the new rules can be found here.

New York Lawyer Advertising Rules-FAQ

As we all know, the New York lawyer advertising rules went into effect in February. 

Via the NYSBA's General Practice Section blog, I discovered a helpful set of FAQs about the new rules that can be found at the NYSBA's web site.  It's a short document and provides some useful information. 

I have extensively covered the new rules over the past year and my prior posts on this topic can be found here.

Lawsuit Challenging the New York Lawyer Advertising Rules Survives Motion to Dismiss

As reported in this article from NY Lawyer, on Friday, Judge Scullin, a Federal District Court judge for the Northern District of New York, ruled that the lawsuit,  Alexander v. Cahill, 5:07-CV-00117, challenging the newly promulgated lawyer advertising rules may proceed.  (Hat tip: New York Attorney Malpractice Blog). 

Judge Scullin declined to grant the defendants' motion to dismiss and reserved judgment on the plaintiffs' motion for a preliminary injunction seeking to stay enforcement of the new rules.

The judge set  June 18th as the date for an expedited trial to determine whether the new rules are unconstitutional.

I'll keep you updated as I learn more.

My prior posts on this issue can be found here.

New York Lawyer Advertising Lawsuit Update

Last week I posted information regarding the State's memorandum in the lawsuit challenging the newly promulgated New York lawyer advertising rules that is currently pending in the Northern District of New York.

The Plaintiffs' Reply Memorandum was filed with the Court yesterday and is now available as well.  It can be found here. 

My prior posts about the new rules and this lawsuit can be found here.

The New York Minute

It's Friday.  Welcome week's edition of the Sui Generis New York Minute.

In today's video I discuss the State's Memorandum of Law submitted in opposition to the lawsuit challenging the lawyer advertising rules.

I also discuss this post from Flea, a physician's blog, which is in response to this post from Eric Turkewitz's New York Personal Injury Law Blog.  In Eric's post, he rationally discusses effective cross-examination techniques for attractive physician defendants in medical malpractice cases.  In Dr. Flea's post, he personally attacks Eric and suggests that physicians should refuse to treat plaintiff's medical malpractice attorneys and their families:

How does Eric Turkewitz look at himself in the mirror in the morning?

His wife and kids look like decent enough people (scroll down on link for picture). Where does Turkewitz find doctors in New York City willing to care for them?

Scott Greenfield responded to Dr. Flea's highly personal attack in this post at the Simple Justice blog.

The State's Response to the Lawsuit Challenging the New York Lawyer Advertising Rules

Greg Beck, an attorney who is the Equal Justice Works fellow at the Public Citizen Litigation Group and a frequent poster at the Consumer Law and Policy Blog, was kind enough to share with me the State's memorandum of law in response to the motion of the plaintiffs, Public Citizen, Inc. and Alexander & Catalano, et. al., for a preliminary injunction in the lawsuit that challenges the newly promulgated lawyer advertising rules.

The State's memorandum can be found here.

I haven't yet had a chance to read the entire document.  Once I've done so, I may post my comments regarding the defenses raised by the State.

Handy New York Lawyer Advertising Rules Summary

Today, I came across a handy little chart that succinctly summarizes some of the important effects of the newly promulgated New York lawyer advertising rules. While it certainly doesn't provide a thorough analysis of every issue, it's a good reference guide that provides quick answers to commonly asked questions.

The chart can be found here.