What can lawyers claim in their ads? Supreme Court inaction sets no limit

Inaction by Supreme Court justices leaves standing a ruling by a federal appeals court that a New York law went too far in restricting claims made by ads for lawyers.

Look! Up in the sky! It's a bird. It's a plane. It's a … lawyer.

The US Supreme Court on Monday declined to take up the thorny issue of how far lawyers may go when seeking to attract clients through whimsical and gimmicky advertising.

The action lets stand a ruling by a federal appeals court invalidating a portion of New York's rules of professional conduct mandating how law firms in the state are to behave while advertising for new clients.

The rules, adopted in 2006, had prohibited the use of nicknames, trade names, and marketing slogans that might imply an unproved ability to win cases.

The rules also barred use of marketing gimmicks and other attention-grabbing techniques that do not contain objective information about legal services.

After the new rules were adopted, the personal injury law firm, Alexander & Catalano, and the nonprofit group, Public Citizen, filed suit challenging key provisions on grounds that they were unconstitutional restrictions on commercial speech in violation of the First Amendment.

The law firm had spent significant money developing a slogan, "The Heavy Hitters" and a whimsical ad campaign designed to appeal to a less sophisticated clientele in need of legal advice. The ads aired without objection for years – until the new rules were adopted.

In one television commercial, James Alexander and his partner are portrayed as giants looming over local buildings. They are shown running so quickly to a client's house that their images become blurs on the screen. They are able to leap onto roofs – presumably to battle injustice in high places. One segment even portrays them providing legal advice about an insurance claim to space aliens.

"The firm's ads, although at times silly, were popular among the firm's clients and posed no risk of deception or other harm to consumers," wrote Gregory Beck, a lawyer with Public Citizen, in his brief urging the Supreme Court not to take up the case.

A federal judge and the Second US Circuit Court of Appeals agreed that the new rules were too restrictive.

The Second Circuit observed: "Given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe … that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics."

In her appeal asking the Supreme Court to take up the issue, New York Solicitor General Barbara Underwood said the new rules were necessary to ensure that commercial speech by lawyers is free of "unverifiable and subjective claims" made to attract clients.

She said a bar association task force had identified the "proliferation of false, deceptive or misleading advertisements" by lawyers seeking clients. The new rules were designed to prevent such practices.

She noted that the Supreme Court had left unresolved the question of how to regulate unverifiable claims made by lawyers in advertisements seeking to convey the quality of their legal services.

Underwood said the appeals court decision conflicts with several other state court rulings on advertising by lawyers. The case presents "far-reaching ramifications," she said.

"Lawyers in New York may now advertise that they are 'Heavy Hitters" or "the best in the business," and may use advertising gimmicks such as exaggerated visual depictions of their purported superior legal skills, even though such gimmicks convey no objective information that is relevant to the process of selecting qualified and competent counsel," Underwood wrote in her brief.

Mr. Beck, of Public Citizen, said New York was asking the Supreme Court to "revolutionize its commercial speech doctrine."

"The rule would not only create an arbitrary and unworkable system, it would give states the power to prohibit commercial speech at will" and without meaningful judicial review, Beck wrote.

"The [new rules] imposed detailed new regulations that were among the most prohibitive in the country and restricted widespread advertising techniques that consumers see in the media every day," he said in his brief. "The amendments were so restrictive that, had they been evenly applied to other industries, they would have prohibited virtually every commercial advertisement currently running in most form of media."

(Published by CS Monitor - December 13, 2010)