Hello welcome to this JACPA Ethics Alert blog which will discuss the recent federal Second Circuit Court of Appeals opinion which found that parts of a New York Bar rule requiring lawyers who claim to be certified specialists to make certain disclosure statements were violations of the free speech provisions of the First Amendment of the U.S. Constitution. The opinion is: Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District, 10-1587-cv (March 5, 2012) and the opinion is attached.
New York Bar Rule 7.4 permitted a lawyer who is certified as a specialist to state that claim in an advertisement if the certifying organization is identified and the following statements are “prominently made” in the advertisement: “(1) The (name of the private certifying organization) is not affiliated with any governmental authority (,) (2) Certification is not a requirement for the practice of law in the State of New York and, (3) (that the certification) does not necessarily indicate greater competence than other attorneys experience in this field of law.”
The New York Bar committee opened an investigation in 1996 regarding the lawyer’s reference to himself as a “board certified civil trial specialist.” The lawyer subsequently agreed to include the name of the board that certified him (National Board of Trial Advocacy) on both his letterhead and in future telephone directory advertisements and was not disciplined.
In 1999, the lawyer placed advertisements on two billboards which had the disclaimer; however, the Bar committee sent him correspondence questioning whether the disclaimer on the bulletin board was large enough to meet the “prominently made” requirement of NY Rule 7.4. That investigation was ultimately closed and the lawyer was not disciplined; however, in May 2000, the Bar committee began another investigation into the lack of disclaimer on the lawyer’s letterhead. The lawyer argued that he did not need the disclaimer on the letterhead because the letterhead only said that he was board certified and did not state he was a “specialist.” The Bar committee’s position was that the use of the word “certified” implied specialization.
The lawyer filed a lawsuit in federal court in 2001 seeking a declaration that the predecessor to Rule 7.4, DR 2-105 (C)(1) was not enforceable. The District Judge granted summary judgment finding that New York had a substantial interest in protecting the public from potentially misleading attorney advertisements which was furthered by the rule and the rule was narrowly drawn and citing the U.S. Supreme Court decisions in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) and Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990) and. The judge also rejected the claim that the rule was vague on its face but found there were still issues on whether it was vague as applied. A bench trial was then held, the federal Magistrate also rejected the lawyer’s claims, and the lawyer appealed to the federal Second Circuit Court of Appeals.
The Second Circuit opinion reversed the federal Western District Judge’s grant of summary judgment to the grievance committee and the decision of a federal Magistrate who rejected the lawyer’s void-for-vagueness claim after a 2010 trial.
The opinion first states that there is “no constitutional infirmity” in the first required disclosure that attorneys who claim to be specialists disclose that the certifying organization is not affiliated with any governmental authority.
With regard to the second required disclosure that certification not a requirement for the practice of law, the NY Bar committee argued that the in the State of New York was necessary since, without the disclosure, the public would believe that a lawyer is required to be certified to practice law “thereby leading them to think that they must limit their choice to state-licensed lawyers to those who have been certified as specialists.” The opinion states that this “possible belief” is “sufficiently strained to require some basis in the record to support it” and there was none in the appellate record.
The opinion found that the third required disclosure that certification “‘does not necessarily indicate greater competence than other attorneys experienced in the field of law’-is even more problematic.” Further, some members of the public “might easily think that a certified attorney has no greater qualifications than other attorneys with some (unspecified) degree of experience in the designated area of practice,” when, in fact, the National Board of Trial Advocacy only certifies lawyers who have been lead counsel in at least five trials, who have been an active participant in at least 100 contested matters involving the taking of testimony, who have passed an exam and had 45 hours of continuing legal education and who devote at least 30 percent of their practice to the specialized field.
“These qualifications may reasonably be considered by the certifying body to provide some assurance of ‘competence’ greater than that of lawyers meeting only the criterion of having some experience in the field, and a contrary assertion has a clear potential to mislead,” he said. “Such a requirement does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.” Based on this rationale, the opinion found this disclosure requirement to be unconstitutional.
Although he was not disciplined for violation of the NY Bar Rule, the lawyer also argued that his disclaimer on the first billboard was “prominently made” because the lettering was six inches high, one inch higher that the health warnings on cigarette billboards. The opinion found that “(a)lthough (the lawyer) was never in fact disciplined for violation of the rule, the mere existence of repeated and extended investigations of his conduct created a cloud on his good standing as a member of the bar that was a meaningful adverse consequence to him, and that would clearly chill legitimate advertising by similarly situated lawyers, based on a rule whose contours that a lawyer of ordinary skill and intelligence could not reasonably discern.” The opinion found that it could not conclude that a lawyer of “average intelligence” could anticipate that six-inch high disclaimers were not “prominently made” and therefore this requirement was unconstitutionally vague as applied to the lawyer.
Bottom line: This federal appellate court opinion addresses only New York Bar Rules; however, it is interesting that the opinion strikes down as unconstitutional mandatory disclosure rules related to lawyer certification and addresses the extent to which the Bar can require lawyer speech (i.e. mandatory disclosures), instead of the extent how far lawyer speech can be restricted. It will be interesting to see how this plays out in Florida and other states which have Bar rules requiring mandatory disclosures.
Be careful out there!
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