The US Court of Appeals for the Second Circuit in Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District overturned part of a NY requirement that lawyers advertising professional certifications include particular disclaimers, saying sections of the rule are unconstitutional encroachments on free speech. Ruling that a requirement that ads that say certified lawyers are not necessarily more competent than others is “far more intrusive than necessary” and impermissible under the First Amendment, the court also voided a part of the rule requiring advertisements to explain that lawyers can practice without special certifications, saying the state had not shown that consumers would otherwise be misled.
J. Michael Hayes, who holds board certification in civil trial advocacy, faced several investigations by the State of New York Attorney Grievance Committee for inadequate disclosures on his letterhead and on one of two billboards advertising his services in 1999. To receive certification, a lawyer must have been lead counsel in at least five trials and actively participated in at least 100 matters requiring the taking of testimony. Although the Committee dismissed the investigations, Hayes, fearing further investigations, filed suit pro se in 2001, asking a US District Court for the Western District of New York to declare the disclaimer requirement void. The trial court rejected his void-for-vagueness claim following a bench trial in 2010.
The Second Circuit reverssed finding questionable the requirement that lawyers explain that the certification is not required to practice law, saying the state did not demonstrate that the disclaimer is needed to protect the public. “The alleged harm is surely not self-evident. It is difficult to imagine that any significant portion of the public observing the thousands of lawyers practicing in New York without certification believe that all of them are acting unlawfully.” The Second Circuit did rule that New York can require lawyers to say a certifying organization is not government-affiliated, since “avoiding such a possible misconception furthers a substantial governmental interest in consumer education and is not more intrusive than necessary to further that interest.” However, the court barred the Grievance Committee from enforcing that requirement against Hayes without clear notice of specific problems with his advertising and what he can do to comply. Finding that there was a lack of clear standards for enforcing Rule 7.4 on attorney specializations, the appellate judges ruled that “It is therefore void for vagueness as it has been applied to Hayes.” The New York Rules of Professional Conduct are available via SARA, the Brooklyn Law School Library catalog.
For more on the case, see the NY Law Journal article Circuit Finds Attorney Ad Rule on Specialty Violates Free Speech. How the issue of lawyer specialization impacts law students and law schools was the subject of a post, The end of law schools by Ray Campbell, in the Legal Ethics Forum last month that is worth reading.