SYRACUSE - New state rules designed to curtail outrageous advertisements by lawyers should be thrown out because they violate the U.S. Constitution, an attorney argued Monday in federal court.
Gregory A. Beck of the Public Citizen Litigation Group contended that the new rules place onerous restrictions on both commercial and noncommercial speech and violate the First and Fourteenth Amendments.
“If you look at the commercials, consumers suffer no conceivable harm,” Beck told Northern District Senior Judge Frederick J. Scullin Jr. “This idea that television somehow brainwashes people doesn't make any logical sense. They are adults, able to make their own decisions.”
The new regulations, which apply to all forms of lawyer advertising, took effect in February and were approved after much debate within the legal community. The rules include: a ban on testimonials by current clients or paid endorsements; a ban on nicknames, mottos or trade names that suggest an ability to obtain results; a ban on re-enactments of events that are not authentic; and a ban on depictions of the use of a courthouse or a courtroom.
The new regulations are being challenged by the personal injury firm Alexander & Catalano of Syracuse and Rochester, that firm's co-founder, James L. Alexander, and Public Citizen Inc., a Washington, D.C.-based advocacy group founded by Ralph Nader in 1971.
In a lawsuit filed in February, Beck argued that the regulations focus too heavily on the content of ads rather than their accuracy and were “solely motivated by a general distaste for certain forms of lawyer advertising,” especially by personal injury firms.
Among what the state called “disturbing misrepresentations” in ads run by Alexander & Catalano is one in which an alien says it was told there was “no way” an insurance company would cover damages to its space ship.
Alexander then appears, saying, “Then we'll get them to say ‘yes, way.' ”
A state memorandum says that statement suggests the insurance company can be compelled to pay by Alexander & Catalano, a violation of the new guidelines.
“Irrespective of whether Plaintiffs intend their commercials to be humorous, it cannot be denied that there is little likelihood that they were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style,” the state memorandum says.
Assistant Attorney General Bridget Holohan told Scullin that advertisements “have to contain relevant, factual, verifiable information because outrageous claims might mislead the public.”
“Giants in Syracuse and aliens marching down the street are not relevant to consumers making decisions,” Holohan said. “We argue where an advertisement is not susceptible to be verified, it's not protected by the First Amendment, The Supreme Court has opened this argument. It's a valid argument. The state's interest is in maintaining professionalism and a free flow of truthful, relevant information. The state has a substantial interest.”
Scullin noted that the Supreme Court has ruled there is First Amendment protection for attorney advertising. “It's not incumbent to show relevancy,” he said. “It's still attorney advertising, which is protected.”
The new state rules were among several revisions embodied in New York's Code of Professional Responsibility. Also banned were Internet pop-up ads and solicitation of clients in chat rooms. Beck asked Scullin to address popups without prohibiting them altogether.
Before reserving his decision, Scullin also asked if it was possible for the state to use the existing rules.
Alexander and Catalano had billed itself in most of its advertisements as “heavy hitters.” But the firm has abandoned the motto for fear of running afoul of the rules' prohibition against implying the ability to obtain results.
“Lawyer advertising has always been controversial. Many lawyers don't like lawyer advertising. We're not one of them,” Alexander said after the hearing. “Here's hoping he (Scullin) will agree with us. It involves a lot more than us. The rules apply to all lawyers. The pre-existing rules were adequate.”
“If you look at the commercials, consumers suffer no conceivable harm,” Beck told Northern District Senior Judge Frederick J. Scullin Jr. “This idea that television somehow brainwashes people doesn't make any logical sense. They are adults, able to make their own decisions.”
The new regulations, which apply to all forms of lawyer advertising, took effect in February and were approved after much debate within the legal community. The rules include: a ban on testimonials by current clients or paid endorsements; a ban on nicknames, mottos or trade names that suggest an ability to obtain results; a ban on re-enactments of events that are not authentic; and a ban on depictions of the use of a courthouse or a courtroom.
The new regulations are being challenged by the personal injury firm Alexander & Catalano of Syracuse and Rochester, that firm's co-founder, James L. Alexander, and Public Citizen Inc., a Washington, D.C.-based advocacy group founded by Ralph Nader in 1971.
In a lawsuit filed in February, Beck argued that the regulations focus too heavily on the content of ads rather than their accuracy and were “solely motivated by a general distaste for certain forms of lawyer advertising,” especially by personal injury firms.
Among what the state called “disturbing misrepresentations” in ads run by Alexander & Catalano is one in which an alien says it was told there was “no way” an insurance company would cover damages to its space ship.
Alexander then appears, saying, “Then we'll get them to say ‘yes, way.' ”
A state memorandum says that statement suggests the insurance company can be compelled to pay by Alexander & Catalano, a violation of the new guidelines.
“Irrespective of whether Plaintiffs intend their commercials to be humorous, it cannot be denied that there is little likelihood that they were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style,” the state memorandum says.
Assistant Attorney General Bridget Holohan told Scullin that advertisements “have to contain relevant, factual, verifiable information because outrageous claims might mislead the public.”
“Giants in Syracuse and aliens marching down the street are not relevant to consumers making decisions,” Holohan said. “We argue where an advertisement is not susceptible to be verified, it's not protected by the First Amendment, The Supreme Court has opened this argument. It's a valid argument. The state's interest is in maintaining professionalism and a free flow of truthful, relevant information. The state has a substantial interest.”
Scullin noted that the Supreme Court has ruled there is First Amendment protection for attorney advertising. “It's not incumbent to show relevancy,” he said. “It's still attorney advertising, which is protected.”
The new state rules were among several revisions embodied in New York's Code of Professional Responsibility. Also banned were Internet pop-up ads and solicitation of clients in chat rooms. Beck asked Scullin to address popups without prohibiting them altogether.
Before reserving his decision, Scullin also asked if it was possible for the state to use the existing rules.
Alexander and Catalano had billed itself in most of its advertisements as “heavy hitters.” But the firm has abandoned the motto for fear of running afoul of the rules' prohibition against implying the ability to obtain results.
“Lawyer advertising has always been controversial. Many lawyers don't like lawyer advertising. We're not one of them,” Alexander said after the hearing. “Here's hoping he (Scullin) will agree with us. It involves a lot more than us. The rules apply to all lawyers. The pre-existing rules were adequate.”
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laker15 wrote on Jun 20, 2007 9:25 AM: