A high-volume, heavy-advertising New York personal injury law firm and a Washington, D.C., advocacy group are apparently the first to challenge the new attorney advertising restrictions that took effect Thursday, February 1st.

On the same day the new rules were implemented, Alexander & Catalano, with offices in Syracuse and Rochester, N.Y., and Public Citizen Inc. filed a federal lawsuit in the Northern District alleging the restrictions violate the constitutional right to free speech and impose anti-consumer limits on lawyers ads.

The suit, filed Feb. 1 in Albany, N.Y., seeks injunctive and declaratory relief in an attempt to prevent enforcement of the new rules by the disciplinary committees.

“The rules overall are a restriction on free speech,” Gregory A. Beck of the Public Citizen Litigation Group said in an interview. “They are not based on a concern that what is said is false, but on a concern of what some people think is poor taste. The [U.S.] Supreme Court has made clear you cannot regulate speech based on taste.”

Alexander v. Cahill comes as little surprise since several attorneys and advocates had questioned the constitutionality of the revised advertising rules in the Code of Professional Responsibility.

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“The amendments appear to be motivated solely by a general distaste for certain forms of lawyer advertising and by discrimination against a certain class of attorneys who assist injured consumers,” according to the lawsuit.

Alexander & Catalano bills itself as the “heavy hitters,” a moniker that is probably barred under the new rules. The firm recently removed the slogan from its advertising materials, “at significant expense and, as a result, will lose benefit of widespread public recognition of its slogan,” according to the lawsuit.

The personal injury firm said it also fears that its routine use of phrases like “think big” and its promise to give clients “a big helping hand” in securing large verdicts or settlements is now prohibited.

Additionally, Alexander & Catalano complains that is has been forced to drop its splashy TV ads, which in the past have depicted its lawyers as towering giants leaping onto rooftops and running to the clients house.

“Because these scenes might be considered techniques to obtain attention and because the fictional traits exhibited by lawyers in these scenes do not appear to be relevant to the selection of counsel, Alexander & Catalano has been forced to alter its advertising campaign to stop running these advertisements,” the suit alleges. “As a result, the firms ability to market its services has been significantly impaired.”

In order to stay current with all the changes, or just read the statutes for yourself, I suggest buying:

It is a must for anyone planning to practice law in NY.

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1. Law.com – Attorney Ad Rules Spark Unusual Collaboration Between Judges, Bar

The involvement of the bar in the formulation of new attorney advertising restrictions marked an unprecedented collaboration between the legal community and court administrators, and one entered into with considerable consternation, a top judge revealed Thursday.Eugene F. Pigott Jr., now a judge of the New York Court of Appeals, said the presiding justices were reluctant to solicit opinions from the bar in drafting a new disciplinary rule on advertising, largely because they had never done so before. But ultimately the judges “knew what we didn’t know” and began a cooperative venture, he said.

Pigott, who was presiding justice of the Appellate Division, 4th Department, when the new rules were first crafted, suggested ground may have been broken for a new relationship between the rule makers and practitioners.

“This was the first time we ever asked for input,” Pigott said yesterday at the New York State Bar Association’s annual meeting. “But I think we knew what we didn’t know, and we didn’t really know how it would impact practice.”

The presiding justices last June proposed amending the code of professional conduct to add sweeping new restrictions on attorney advertising. However, rather than just impose the rules, the justices opened a comment period. Approximately 100 attorneys and virtually all of the major bar groups expressed concerns, which are reflected in the final product.

“This has been a terrific effort in collaboration,” said Michael R. Wolford, former president of the Monroe County Bar Association, whose guidelines on attorney advertising sparked recommendations by the New York State Bar Association. “What I find particularly interesting is the cooperation between the organized bar and the courts. This was not a case where something was imposed without an opportunity to comment, and I hope they learned from this effort.”

The new rules attempt to clamp down on what the presiding justices consider inappropriate advertising without violating the constitutional right to free speech.

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Pigott said he had no constitutional concerns with the original, more restrictive proposal even though it promptly sparked threats of litigation.

“We are a monopoly,” Pigott said. “We have a right to practice law, and no one else can. In return for that monopoly, we give up certain rights.”

ADVERTISING ‘EXPLOSION’

Pigott said the new rules grew out of a concern of the presiding justices over the “explosion” of attorney advertising, and their suspicion that some of the ads were not only distasteful but misleading.

“We were concerned about lawyers who wanted to give the impression that they are the best, when they were often quite young and inexperienced,” Pigott said. “What you and I do as lawyers is serious. And on TV are these pop-ups who make a joke out of it.”

Pigott also offered insight into the workings of the administrative board of the courts, which consists of the four presiding justices and the chief judge. He said that no major disciplinary rule is changed without unanimous agreement. As an example, Pigott said he has pushed for mandatory legal malpractice insurance.

“I think it is a great idea,” Pigott said. “Others didn’t. So it will go nowhere. It is a little scary to think that I, as a presiding justice, can stop any disciplinary rule that comes across my desk.”
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Meanwhile, the New York Legal Marketing Association, a not-for-profit group, is putting together an educational Web cast on the new rules. Members and nonmembers can register for the Feb. 8 program at www.legalmarketing.org.

Andrea Stimmel, president of the trade group, said the number of lawyers who advertise is relatively minor.
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An explanation of the rules and their impact also can be found in an article by Anthony Davis, “Appellate Divisions Release New Lawyer Advertising Rules,” Jan. 22 and on www.nylj.com.

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3. Fantasy Life, Real Law