Read the article entitled, In the News on page 167 of your textbook and answer the questions below.

In The News The Second Circuit Rejects Most of New York's Attorney Advertising Rules March 12, 2010 In 2006, sweeping new restrictions on lawyer advertising were enacted in New York to "safeguard consumers from potentially misleading advertising and overly aggressive or inappropriate solicitation for legal services" according to the four Presiding Justices of the New York Appellate Division. However, the law firm of Alexander & Catalano challenged those restric-tions on February 1, 2007, the day the new rules went into effect. The firm, which had run TV commercials depicting its lawyers towering above local buildings and leaping tall rooftops to help their clients, brought a suit challenging the new rules on First Amendment grounds through Public Citizen, a group founded by consumer advocate Ralph Nader. At the trial court level Judge Scullin ruled that it was proper to bar client testimonials about pending matters as well as the portrayal of a judge or fictitious law firms by actors. He also agreed that it was legal to ban highlighting traits that are unrelated to compe-tence of counsel and prevent the use of nicknames like "heavy hitters" that convey an ability to get results. The new rules also included a 30-day moratorium barring lawyers from advertising in any way to solicit personal injury clients from a mass disaster or "specific inci-dent." The plaintiff's appealed to the Second Circuit. At the hour-long oral argument, the three mem-bers of the panel focused on whether the restrictions were narrowly tailored to their intended purpose, the constitutional standard from the U.S. Supreme Court's 1980 ruling in Central Hudson & Gas & Electric Corp. v. NYS Public Service Commission. That case established the conditions under which commer-cial speech may be restricted including "misleading commercial speech." When one of the judges pressed the attorneys challenging the new rules for a way to narrow the moratorium rule more and still protect a victim's privacy interests, Attorney Gregory Beck sug-gested that it be limited to victims of mass disasters or serious injuries because the term "specific incident" is overly broadall encompassing. Defending the constitutionality of the new rules, Defendants' counsel argued that advertising tech-niques that are irrelevant to the attorney's services can be misleading and are therefore not protected speech under the general rule prohibiting misleading advertising. The Second Circuit, however, saw it dif-ferently. The court wrote: "A rule barring irrelevant advertising components certainly advances an interest in keeping attorney advertising factual and relevant. But this interest is quite different from an interest in preventing misleading advertising. Like Defendants' claim that the First Amendment does not protect irrelevant and unverifiable components in advertis-ing, Defendants here appear to (merge) irrelevant components of advertising with misleading advertis-ing. These are not one and the same." Ultimately, the Court also determined that the Defendants failed to provide evidence supporting their position that all nicknames are misleading. Because the new rule prohibits all "nicknames, monikers, mottos or tradenames that imply an ability to obtain results in a matter" the regulation is too broad. Without evidence that consumers have been misled by these names and promotional devices, the Defendants did not meet the test for sustaining this particular prohibition. The defense argued that "common sense" sup-ports the conclusion that testimonials are misleading. They clearly are intended to show that past results indicate future results. However, the Court wrote, not all testimonials are misleading, especially when they are accompanied by a disclaimer. Finding that "com-mon sense" was insufficient evidence of consumer problems with attorney advertising via client testi-monials, the Court found this provision of the law an unconstitutional restriction on commercial speech. In its decision on New York's new 30-day mora-torium, the Court called families of victims of mass disasters people with a "porcelain heart." Comparing the new New York law to the law in Florida Bar v. Went-for-It, where the US Supreme Court upheld a similar rule in Florida, the Second Circuit found the New York rule sufficiently narrow. The Court wrote: "No doubt the statute could have been more precisely drawn, but it need not be 'perfect' . . . to pass constitutional muster."

1. One by one, do you think these rules would have protected the public against "inappropriate solicitations: and "misleading ads" and "overly aggressive marketing"? Briefly explain your reasoning.

2. Do you agree that it is common sense that client testimonials are misleading? (Consider the article, but also think about what is allowed in Texas.)

3. What do you think of the moratorium rule and New York's expansion of the rule into "specific incidents"?