Alexander v. Cahill

598 F.3d 79 (2nd Cir. 2010)


Prior to the adoption of New York's new attorney advertising rules, P's commercials often contained jingles and special effects, including wisps of smoke and blue electrical currents surrounding the firm's name. The advertisements also featured dramatizations, comical scenes, and special effects--for instance, depicting P and his partner as giants towering above local buildings, running to a client's house so quickly they appear as blurs, and providing legal assistance to space aliens. Another advertisement depicted a judge in the courtroom and stated that the judge is there 'to make sure the trial is fair.' The firm's ads also frequently included the firm's slogan, 'heavy hitters,' and phrases like 'think big' and 'we'll give you a big helping hand.' To date, no disciplinary actions have been brought against the firm or its lawyers based on firm advertising. The new rules, caused P to halt its advertisements for fear of such action. Public Citizen Litigation Group (P) is a division of Public Citizen that conducts, inter alia, pro bono constitutional litigation in state and federal courts on behalf of its clients. These organizations maintain a website and various blogs and participate in distributing educational materials on various legal issues to the public. Cahill (Ds) are the chief counsels or acting chief counsels of the disciplinary committees. Ds are responsible for enforcing the New York Code of Professional Responsibility and the attorney disciplinary rules promulgated thereunder. In June 2006, the presiding justices approved for comment draft amendments to the then-existing rules. The new rules were designed to protect consumers 'against inappropriate solicitations or potentially misleading ads, as well as overly aggressive marketing,' and to 'benefit the bar by ensuring that the image of the legal profession is maintained at the highest possible level.' The rules were set to take effect on February 1, 2007. The rules impose content-based restrictions. Based on the rules, P would not be able to run his present commercials. A second group of rules imposes a thirty-day moratorium on certain communications following a personal injury or wrongful death event. Ps sought declaratory and injunctive relief in that these rules infringed their First Amendment rights because the rules prohibited 'truthful, non-misleading communications that the state has no legitimate interest in regulating.' The District Court found unconstitutional the disputed provisions of § 1200.6(c), while concluding that the thirty-day moratorium provisions survived constitutional scrutiny. The court applied the test in Central Hudson, which considers whether (1) the speech is protected by the First Amendment; (2) there is a substantial state interest to be achieved by the restriction; (3) the restriction materially advances the state interest; and (4) the restriction is narrowly drawn. It rejected D's claim that 'the State of New York could ban attorney advertising that was 'irrelevant, unverifiable, and non-informational' without reference to the Central Hudson test.' Central Hudson requires that the regulation materially advance the state's interest and the District Court concluded that the record was 'notably lacking.' Ds provided sufficient support only for two amendments: the prohibition on the portrayal of judges in attorney advertisements, and the prohibition on the use of trade names that imply an ability to get results. But the court found that those amendments did not do so in a sufficiently narrowly tailored fashion. The court found that New York's moratorium materially advanced state interests in protecting the privacy of citizens and guarding against the indignity of being solicited for legal services immediately following a personal injury or a wrongful death event, and did so in a reasonably proportionate manner. It found that the general advertisements in any media were more than appropriate, provided they do not reference a specific tragedy. Everyone appealed.