Second Circuit Invalidates Rule of NY Rules of Professional Conduct on Attorney Advertising

In its opinion in Hayes v. State of New York Attorney Grievance Committee, the Second Circuit declared Rule 7.4 of the NY Rules of Professional Conduct unconstitutional under the First Amendment.  Hayes, a New York attorney, was awarded Board Certification in Civil Trial Advocacy by the National Board of Trial Advocacy.  Hayes' attempts to advertise this fact, including on his letterhead and billboards, are the crux of the problem.

Rule 7.4, now codified at N.Y. Comp. Codes R. & Regs. tit. 22 § 1200.10(c)(1), provides:

A lawyer who is certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association may state the fact of certification if, in conjunction therewith, the certifying organization is identified and the following statement is prominently made: “The [name of the private certifying organization] is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.”

In litigation that started more than a decade ago, the rule has been renumbered, but not changed.  The panel noted that New York's rule differs from the model ABA rule and the majority of other states in requiring disclosure statements attached to board certification statements.

Essentially the rule requires a prominently made disclosure statement that includes three statements:

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
3. and does not necessarily indicate greater competence than other attorneys experienced in this field of law.

The panel considered both Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990) (finding unconstitutional a total ban on an attorney advert including a mention of Board certification), and Ibanez v. Florida Dep’t of Business and Professional Regulation, 512 U.S. 136 (1994) (finding unconstitutional a censure of an attorney for listing herself as also being credentialed as a CPA and CFA).  Both of these cases, in turn, incorporate the test for commercial speech from Central Hudson.

The panel found the first required disclosure statement untroubling, but the latter requirements unconstitutional.  As to the "certification is not a requirement for the practice of law," the court found that the state did not demonstrate any harm, and that no harm is 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."   As to "no greater competence" the panel essentially found it was simply not true given the certifying process, and therefore the required disclosure statement, "does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record." 

Additionally, Hayes argued that the rule's requirement that the disclaimer be "prominently made" was vague.  This would seem to be a weak argument, but the court found it a close question and ultimately ruled that "prominently made" was unconstitutionally vague, at least as applied to Hayes.  This conclusion that seems quite correct given the context that the court provides:

Hayes advertised on billboards that set forth the disclaimer in lettering six inches high, one inch larger than the lettering required by the federal government for health warnings on similar cigarette advertising. It is not our role to assess whether such a disclaimer does or does not comply with the New York rule, and this case does not require us to opine on whether a clear and specific rule that required even larger lettering would comport with the Constitution. We find ourselves unable to conclude, however, that a lawyer of average intelligence could anticipate that lettering of that dimension could be construed as not “prominently made” . . . .

Our concern is only exacerbated by the inability of the Committee’s representatives to clarify the content of the rule. A former principal counsel to the Committee acknowledged that his successor would likely apply a different standard of “what constitutes prominently made.” He also testified that he did not think “there’s an obligation to set forth an objective standard” as to how long the Disclaimer would be displayed in a television commercial, and as to whether his successor would use the same objective standard he used, answered, “I doubt it. [I]t’s a different person.” He also said he could not tell if the Disclaimer was prominently made on a billboard or a TV commercial unless he had seen them. With respect to the size of lettering of the disclaimer on a Hayes billboard, the attorney for the Grievance Committee at one time indicated that letters must be six inches in height, but the Committee apparently accepted four-inch letters. At trial he could not state whether placing the disclaimer in a footnote on the last page of a Hayes document would satisfy the prominence requirement.

Although the uncertainties as to how the prominence requirement will be enforced could be alleviated if the Grievance Committee would give pre-enforcement guidance to inquiring attorneys, such guidance was not available to Hayes. The former principal counsel to the Grievance Committee was asked at trial, “[I]s there a way that you would assist the attorney if there were not a grievance file pending?” He replied, “The short answer is, no.” He added that the Committee did not provide advisory opinions because, in part, “it would probably take up most of our work.” Because the prominence requirement is not clear to those who sought to enforce it against Hayes’s billboards, let alone to Hayes as a lawyer of ordinary skill and intelligence attempting to comply with it, it cannot validly be enforced against him in this context.

[emphasis added].

It does seem as if the NY grievance officials were quite cavalier, certainly contributing to a finding of the rule's constitutional infirmities in its application.

RR