Alexander et al v. Cahill et al

Filing 34

STATEMENT OF MATERIAL FACTS re 33 MOTION for Summary Judgment, 29 MOTION for Summary Judgment of all parties filed by James L. Alexander, Alexander & Catalano LLC, Public Citizen, Inc.. (Attachments: # 1 Exhibit(s) Exhibit 1, Part 1: Task Force Report# 2 Exhibit(s) Exhibit 1, Part 2: Task Force Report# 3 Exhibit(s) Exhibit 2: FTC Letter# 4 Exhibit(s) Exhibit 3: Comments of Public Citizen# 5 Exhibit(s) Exhibit 4: New York State Bar Association Release# 6 Exhibit(s) Exhibit 5: Office of Court Administration Release)(Beck, Gregory)

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P UBLIC CITIZEN LITIGATION GROUP 1 6 0 0 TWENTIETH STREET, NW W ASHINGTON, DC 20009 (2 0 2 ) 588-1000 (2 0 2 ) 588-7795 (fax) A MERICAN CIVIL LIBERTIES UNION 1 2 5 BROAD STREET, 18 TH FLOOR N EW YORK, NY 10004 (2 1 2 ) 549-2500 (2 1 2 ) 549-2648 (fax) N EW YORK CIVIL LIBERTIES UNION 1 2 5 BROAD STREET, 18 TH FLOOR N EW YORK, NY 10004 (2 1 2 ) 607-3300 (2 1 2 ) 344-3329 (fax) _____ C o m m e n ts of Public Citizen Litigation Group, A m e r ic a n Civil Liberties Union, and New York Civil Liberties Union o n the Proposed Amendments to Rules Governing Lawyer Advertising N o v e m b e r 15, 2006 P u b lic Citizen Litigation Group ("PCLG"), the American Civil Liberties Union (" A C L U " ), and the New York Civil Liberties Union ("NYCLU," and, together with P C L G and ACLU, the "Commenters") are filing these comments on the proposed a m e n d m e n ts to the rules governing lawyer advertising drafted by the Presiding Justices of th e Appellate Division and scheduled to become effective on January 15, 2007. The p ro p o s e d amendments would prohibit the communication of truthful, non-misleading in f o rm a tio n about legal services to New York consumers--regardless of whether the

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c o m m u n ic a tio n is commercial or noncommercial in nature--and would impose u n p re c e d e n ted restrictions on Internet communications. The Commenters strongly o p p o se the amendments, which would be both unworkable in practice and would violate th e First Amendment of the U.S. Constitution. We urge that the proposed amendments be w ith d ra w n . I n t e r es t of the Commenters P u b lic Citizen Litigation Group P C L G is a nonprofit public interest organization located in Washington, D.C. It is a division of Public Citizen, a nonprofit advocacy organization with approximately 1 0 0 ,0 0 0 members nationwide, 9,442 of whom live in New York. Of PCLG's eight fulltim e attorneys, one is currently licensed to practice law in New York and one is in the p ro c e ss of applying for admission there. PCLG has solicited clients in New York for re p re se n ta tio n on a pro bono basis and has represented clients before state and federal c o u rts in New York. PCLG will therefore be directly affected by the proposed am en d m en ts. Moreover, Public Citizen has an interest in protecting its New York m e m b e rs, who would be deprived of information about their legal rights and available le g a l services under the proposed amendments. A s an organization devoted to defending the rights of consumers, Public Citizen h a s frequently opposed false and misleading advertising, while at the same time d e f en d in g the First Amendment right of speakers to engage in truthful, non-misleading

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c o m m e rc ia l speech. Among other cases, PCLG attorneys argued and won Virginia State B o a rd of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), in w h ich the Supreme Court for the first time recognized a First Amendment right to c o m m e rc ia l speech, and Edenfield v. Fane, 507 U.S. 761 (1993), in which the Supreme C o u rt struck down a ban on in-person solicitation by certified public accountants. PCLG's support for free speech in the commercial context is based in part on the re c o g n itio n that truthful commercial speech enhances competition and ensures that c o n su m e rs will be provided with information that may be useful to them--such as inf o rm atio n on pricing and alternative products and services. As the Supreme Court n o te d in Virginia State Board of Pharmacy, a "consumer's interest in the free flow of c o m m e rc ia l information . . . may be as keen, if not keener by far, than his interest in the d a y's most urgent political debate." Id. at 763. P C L G is particularly interested in the right to engage in truthful legal advertising b e c a u se commercial speech in this context not only encourages beneficial competition in th e marketplace for legal services, but can also educate consumers about their rights, in f o rm them when they may have a legal claim, and enhance their access to the legal s ys te m . See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 646-47 (1985). In th e past, PCLG has commented on proposed revisions to lawyer advertising rules and litig a te d cases where these rules have unjustifiably restricted the right to commercial free s p e e ch . In Zauderer, PCLG successfully challenged the decision of the Ohio Supreme

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C o u rt to discipline a lawyer for taking out ads informing women about his legal services in connection with Dalkon Shield litigation. Id. Public Citizen was among the plaintiffs w h o successfully challenged Mississippi's restrictive advertising rules in Schwartz v. W e lc h , 890 F. Supp. 565 (S.D. Miss. 1995). And PCLG has also challenged other a n tic o m p e titiv e bar rules that harm consumers. In Goldfarb v. Virginia State Bar, 421 U .S . 773 (1975), for example, PCLG attorneys successfully argued that a bar's minimum f e e schedule violated the Sherman Act. American Civil Liberties Union and New York Civil Liberties Union T h e American Civil Liberties Union is a nonprofit, nonpartisan organization, with m o re than 500,000 members nationwide, devoted since the 1920s to protecting the civil lib e rtie s guaranteed under the U.S. Constitution. The New York Civil Liberties Union, th e New York local affiliate of the ACLU, is a nonprofit, nonpartisan organization, with n e a rly 50,000 members and six chapters in New York State, devoted since 1951 to p ro tec tin g the civil liberties guaranteed under the United States Constitution to residents o f New York. A primary component of the ACLU's and NYCLU's activities is sponsoring litig a tio n to advance and protect civil liberties. These activities are conducted by the A C L U through the American Civil Liberties Union Foundation, a New York not-forp ro f it corporation with its main offices in New York City, New York, and by NYCLU th ro u g h the New York Civil Liberties Union Foundation, also a New York not-for-profit

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c o rp o ra tio n with offices in New York City, New York. Both the ACLU and NYCLU e m p lo y staff lawyers in New York who have provided pro bono representation to New Y o rk clients on civil liberties matters before state and federal courts. In addition, both A C L U and NYCLU conduct broad public education outreach efforts regarding civil lib e r tie s issues. A s nonprofit organizations dedicated to promoting civil liberties, the ACLU and N Y C L U will be directly affected by the proposed amendments, as will the New York s ta f f lawyers employed by both organizations. Furthermore, both the ACLU and NYCLU h a v e an interest in protecting the nearly 50,000 ACLU/NYCLU members in New York, w h o would be deprived of information about their legal rights and available legal services u n d e r the proposed amendments. S in c e its founding in 1920, the ACLU has vigorously defended the principle of f re e speech and its lawyers have appeared before the United States Supreme Court and th e New York Court of Appeals in numerous free speech cases, including In re Primus, 4 3 6 U.S. 412 (1978), discussed more fully below. In Primus, the United States Supreme C o u rt held that South Carolina violated the First and Fourteenth amendments when it a p p lie d its disciplinary rules to reprimand a South Carolina attorney who was a c o o p e ra tin g lawyer with the South Carolina branch of the ACLU, after she advised a g ro u p of women who had been sterilized as a condition of receiving public medical

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a ss ista n c e of their legal rights and informed one of the women that the ACLU could p ro v id e her with free legal assistance. * * *

T h e Commenters thus have significant experience with the subject matter of the p ro p o se d amendments. For the reasons outlined below, we believe that the amendments a r e motivated by an illegitimate purpose and, if adopted, would face a successful First A m e n d m e n t challenge. Analysis T h e proposed rules violate the First Amendment both because they restrict n o n c o m m e r c ia l speech at the core of the First Amendment and because they propose re stric tio n s on commercial speech that is neither false nor misleading. Furthermore, the p ro p o s e d amendments would impose onerous and unworkable burdens on Internet speech th a t, independent of the rules' other problems, would violate the First Amendment. Because the rules appear to be motivated by a general distaste for lawyer advertising--a c o n sid e ra tio n that the U.S. Supreme Court has specifically held not to be a legitimate s ta te interest sufficient to support rules against attorney advertising, see Zauderer, 471 U .S . at 647-48--we do not believe that mere amendments to the proposed rules would re m e d y their serious constitutional deficiencies. We therefore urge that the proposed ru le s be withdrawn in their entirety.

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I.

T h e Amendments Unconstitutionally Restrict Noncommercial Speech. T h e proposed rules prohibit advertising and solicitation regardless of whether the

s p e e ch at issue is commercial or noncommercial. They would thus apply to advertising a n d solicitation by both commercial law firms and nonprofit organizations like PCLG, A C L U , and NYCLU. The Supreme Court has recognized, however, that solicitation of n o - f e e legal services by nonprofit political organizations is not commercial speech, but ra th e r core political speech for which regulations are subject to strict scrutiny under the F irs t Amendment. Primus, 436 U.S. at 428. In Primus, an ACLU cooperating attorney offered free legal services to a woman c h a llen g in g a state's requirement of sterilization as a condition of receiving public m e d ic a l assistance. Id. at 415-16. The Supreme Court reversed the state supreme court's d e c is io n to sanction the attorney, holding that the attorney's solicitation was protected p o litic a l speech and association under the First Amendment. Id. at 428. The Court re c o g n ize d that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment" with which a state m a y interfere only if it has a compelling interest and its methods are narrowly tailored to w a rd that interest. Id. at 426, 432-33 (quotation omitted). In their present form, the p ro p o s e d rules, like the rules in Primus, lack an exception for noncommercial speech and a re not narrowly tailored toward a compelling state interest. As examined in Parts II and III below, the rules would impose onerous restrictions on attorney speech, including

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re stric tio n s on advertising and Internet communications. As applied to noncommercial s p e e c h , these restrictions could not withstand First Amendment scrutiny. A. T h e Definition of Solicitation is Unconstitutionally Overbroad.

A s currently formulated, the proposed amendments would impose an u n c o n stitu tio n a l burden on the rights of nonprofit legal organizations to solicit clients and o n lawyers working for nonprofit organizations. The rules define "solicitation" broadly a s any "communication . . . concerning the availability for professional employment of a la w ye r or law firm." § 1200.1(l). Thus, an offer by a lawyer who works for any one of th e Commenters to represent a New York citizen pro bono in a constitutional challenge a g a in s t the state would fall squarely within the scope of the proposed rules and would be s u b je c t to all the restrictions on commercial speech outlined in the following sections. When applied to noncommercial speech, however, these restrictions--such as the lim ita tio n on particular forms of communication in attorney advertising--would be b latan tly unconstitutional under Primus. M o re o v e r, the language sweeps far beyond solicitations targeted at c o n su m e rs -- th e only possible beneficiaries of the rule--to include even communications w h e re there is no reasonable possibility of fraud or overreaching. The definition applies to communications targeted to any "specific recipient or group of recipients," including, b u t not limited to, prospective clients and their families and legal representatives. Id. Thus, an email from a lawyer at PCLG to another lawyer at the ACLU requesting a

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re f erra l, stating a willingness to write a brief amicus curae, or even mentioning that the law ye r is currently looking to take on more cases, would fall within the definition's plain la n g u a g e. These common informal communications between lawyers at nonprofit legal a d v o c ac y organizations would, under the proposed rules, be subject to all the onerous re stric tio n s against attorney solicitation. N o n e of these applications of the rules relates in any way to their presumed g o a l-- to protect consumers of legal services from false and misleading advertising. Far f ro m being narrowly tailored, the proposed rules would apply to a wide range of protected s p e e c h that the state has no interest in regulating. B. The Definition of Advertisement is Also Unconstitutional.

T h e proposed rules' definition of "advertisement" is even more fraught with p ro b le m s . The amendments define the term as "any public communication made by or on b e h a lf of a lawyer or law firm about a lawyer or law firm, or about a lawyer's or law f irm 's services." § 1200.1(k). The rules require no nexus between the communication a n d commercial activities, or even matters related to the lawyer's practice of law. B y its terms, this definition would cover press releases or educational materials d is trib u te d by nonprofit organizations that include information about the authoring o rg a n iz a tio n or lawyer. It would also cover educational seminars given by a lawyer and p u b lis h e d articles in journals or law reviews that contain either a brief biography or in f o rm a tio n about a lawyer's practice. And because the rules now explicitly apply to

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" c o m p u te r-a c ce ss e d communications," § 1200.1(m), the rule would also cover an a tto r n e y' s web site or the web site of a nonprofit organization that employs attorneys, re g a rd le ss of whether the web site is devoted to public education and information about d e v e lo p m e n t s in the law or to the selling of legal services. E v en such fundamental examples of political speech as, for example, a lawyer's le tte r to the editor of the New York Times criticizing Attorney General Alberto Gonzalez (a lawyer), or a lawyer candidate's statement in a televised debate of his qualifications for o f f ic e would be covered by the plain language of the proposed rules. These forms of c o m m u n ic a tio n are made "by . . . a lawyer . . . about a lawyer" and thus fall within the ru le s' explicit scope. Although we acknowledge that the rules would not likely be applied in circumstances so far removed from their motivating purpose, the vagueness and u n c e rta in ly surrounding the limits of these definitions illustrate the extent to which they tre sp a ss in the realm of core First Amendment speech. Even the potential application of th e rule in such wide-ranging contexts risks a chill on protected political speech. See N A A C P v. Button, 371 U.S. 415, 432-33 (1963); see also City of Lakewood v. Plain D e a le r Publ'g Co., 486 U.S. 750, 757 (1988). Attorneys subject to the amended rules w ill face an unacceptable dilemma: either comply with the rules or risk the possibility of p ro f e ss io n a l discipline. Under these circumstances, many lawyers will have no choice but to forego speech in questionable cases. Moreover, the vagueness of the rules raises the ris k of arbitrary and discriminatory enforcement. See City of Lakewood, 486 U.S. at 757.

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A t a minimum, the definitions of "solicitation" and "advertisement" should be re v is e d to narrow their scope to communications directed at potential clients for the p u rp o s e of persuading the client to retain the attorney's services for a fee. One way to do th is for the definition of solicitation would be to adopt the formulation in the American B a r Association's Model Rules of Professional Conduct, which limits the definition of s o lic ita tio n to cases where an attorney seeks to "solicit professional employment from a p rosp ec tiv e client" and "a significant motive" for the solicitation "is the lawyer's p e c u n iar y gain." Model Rules of Professional Conduct 7.3(a). The amended rule should a ls o follow the lead of the model rules by excluding communications made to another la w ye r, a family member, or someone with a close personal or prior professional re la tio n s h ip with the lawyer. Id. In the case of advertising, an additional difficulty arises in that many c o m m u n ica tio n s are made with dual motives. For example, a lawyer may write an article f o r a bar journal primarily for educational purposes, but also with the hope that it may le a d to future employment. To avoid restraining protected speech, special care should be ta k e n to avoid subjecting these mixed-motive communications to unwarranted re stric tio n s . Thus, at the least, the rule should define advertisement as a communication w h e r e the lawyer's primary motive is pecuniary gain. F o r the reasons spelled out in Part II below, we do not believe these suggested c h a n g e s would be sufficient to make the rules constitutional, but they would at least

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re m e d y the most egregious potential applications of the rules to noncommercial speech th a t is at the core of the First Amendment's protection. C. T h e Thirty-Day Waiting Period is Unconstitutional as Applied to Nonprofit O r g a n iz a tio n s .

T h e rules imposing a thirty-day waiting period on communications by attorneys to in d iv id u a ls and their family members and legal representatives in the event of an incident in v o lv in g potential claims for personal injury or wrongful death, § 1200.41-a, and on a d v e rtis e m e n ts or solicitations relating to a specific incident involving potential claims f o r personal injury or wrongful death, § 1200.8(e), are unconstitutional restrictions on p o litica l speech as applied to nonprofit organizations under Primus. These prohibitions, w h ich are intended to protect presumably vulnerable individuals and their family m em b ers from being contacted by supposedly aggressive lawyers interested in pecuniary g a in , are unconstitutionally overbroad in their reach. Under these rules, a nonprofit o rg a n iza tio n that employs lawyers would be prohibited from communicating with in d iv i d u a ls physically injured by police officers at a political demonstration (and also b arred from contacting their family members and legal representatives) in order to inform th o s e individuals or their family members or legal representatives of the availability of p ro bono legal representation. As an organization with a keen interest in preserving the rig h t of New Yorkers to participate in political protest without undue government in te rf e re n c e, including excessive force, this rule would have a significant and

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u n c o n stitu tio n a l impact on NYCLU's activities and the people whose constitutional rights N Y C L U serves to protect. II. T h e Proposed Restrictions on Lawyer Advertising Are Unconstitutional Even a s Applied to Commercial Speech. T h e current version of the attorney advertising rules fully vindicate the state's le g itim a te interest in protecting consumers by prohibiting lawyer advertising that is false, d e c e p tiv e , or misleading. § 1200.6(b)(1).1 The proposed rules would leave this basic re q u ire m e n t in place, but would add a litany of hypertechnical restrictions that neither b e n e fit consumers nor advance any legitimate state goal. Indeed, the amendments appear to be intended less to prevent fraud than to prohibit the most effective forms of lawyer a d v e rtis in g and to impede competition for legal services. Even if limited to commercial s p e e c h , these amendments are therefore unjustified and unconstitutional.

We note, however, that the prohibition on false, deceptive, or misleading a d v e rtis in g does not exclude non-material misrepresentations. But see Model Rules of P r o f e ss io n a l Conduct Rule 7.1 ("A communication is false or misleading if it . . . contains a material misrepresentation of fact or law, or omits a fact necessary to make the sta tem e n t considered as a whole not materially misleading . . . ." (emphasis added)). This p ro b le m exists in the current version of the rules and is not created by the proposed a m e n d m e n ts . However, the lack of a non-materiality exception potentially restricts some o f the same material that is the subject of the amendments--such as a generic courtroom s c e n e that, although not literally true, is not likely to mislead any consumers. Although th e requirement of materiality might be implied in the rule as presently formulated, we u rg e that the rule be amended to explicitly cover only material misrepresentations.

1

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A.

The Rules' Restrictions on Common Techniques of Effective Advertising A r e an Unconstitutional Restriction on Commercial Speech.

T h e U.S. Supreme Court has long held that commercial attorney advertising is p ro te c te d by the First Amendment. Bates v. State Bar of Ariz., 433 U.S. 350 (1977). A s ta te ordinarily may only ban commercial speech only if it is actually or inherently false. Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 110 (1990). "Commercial speech that is not false, deceptive, or misleading can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state in te re st in a manner no more extensive than necessary to serve that interest." Ibanez v. F la . Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 142 (1994). Importantly, a state's a s s e rtio n that speech is misleading is not enough to justify banning it. Id. at 146. Rather, th e state must meet its burden of "demonstrat[ing] that the harms it recites are real and th a t its restrictions will in fact alleviate them to a material degree." Id. (quotation o m itte d ). The Supreme Court has repeatedly subjected claims by bar authorities that p a rtic u la r forms of attorney advertising are misleading to rigorous and skeptical scrutiny, a n d has, for the most part, rejected those claims. See, e.g., id. at 143-45; Peel, 496 U.S. at 1 0 1 -1 0 ; Zauderer, 471 U.S. at 639-49, In re RMJ, 455 U.S. 191, 203 (1982); Bates, 433 U .S . at 381-82. T h e proposed amendments would ban a wide range of statements by attorneys that a re not actually or, in most cases, even potentially misleading. First, § 1200.6(a) of the

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p ro p o s e d amendments provides that "[t]he content of advertising and solicitation shall be p re d o m in a n tly informational, and shall be designed to increase public awareness of s itu a tio n s in which the need for legal services might arise and shall be presented in a m a n n e r that provides information relevant to the selection of an appropriate lawyer or law f irm to provide such services." § 1200.6(a). Under its plain language, this provision w o u ld appear to prohibit some of the most common and least offensive forms of a d v e rtis in g . For example, a business card or telephone-book listing with only the law ye r's name, phone number, and office address is not "designed to increase public a w a re n e ss of situations in which the need for legal services might arise" and would thus see m to be prohibited under the proposed rule. There is no reason to believe, however, th a t advertisements that are not "predominantly informational" or "designed to increase p u b lic awareness" are in any way misleading to consumers. The proposed amendments would also prohibit a variety of common advertising te c h n iq u e s that are unlikely to mislead any consumers. Thus, the rules would bar using c o u rtro o m s or courthouses as props and using actors to portray clients and judges. § 1200.6(d)(3)-(5). They would prohibit the use of non-lawyer actors to portray lawyers a n d the use of non-lawyers as celebrity spokespeople--although, without explanation, th is rule would not prohibit a lawyer from hiring an actor or celebrity spokesperson who

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a ls o happens to be a lawyer. § 1200.6(d)(3)-(4).2 The rules would also forbid the use of " a nickname, moniker, motto or trade name that implies an ability to obtain results in a m a tte r," a provision that is apparently intended to prohibit slogans like "super lawyers" or " h e av y hitters." § 1200.6(d)(8). Moreover, the rules would prohibit "reenactment of any e v e n ts or scenes or pictures or persons that are not actual or authentic," a provision that a p p e ars to be targeted at dramatizations such as the staging of a generic car accident sce n e to illustrate the sort of services provided by a firm. § 1200.6(d)(6).3 T h e common thread among these proposed amendments is that they appear to be ta rg e te d at basic techniques used in effective advertisements. There is nothing actually or inh ere n tly misleading, however, about any of these techniques. Consumers are a c c u sto m e d to the notion that actors, mottos, and dramatized scenes appear in c o m m e rc ia ls , and are unlikely to make the assumption that everyone and everything they s e e in a commercial is literally real. Depictions of a generic attorney or judge in a c o u rtro o m scene, or a generic client in a depiction of a car accident, are not likely to fool a n y consumers into believing that actual events occurred exactly as depicted; nor could
2

The rules also prohibit "the portrayal of a law firm as a fictitious entity," but it is n o t clear what this provision is intended to mean or the harm it is intended to prevent. § 1200.6(d)(4). This provision is ambiguous, however, because it is unclear whether the rule is ta rg e te d only at fictional events (which is suggested by the words "not actual or a u th e n tic" ), or whether it is instead meant to prohibit reenactment of events that actually o c c u rre d (which would explain the use of the word "reenactment"). Most likely, the rule w a s intended to cover either case, but this is not apparent from the rule's plain language.
3

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th is belief, even if held, possibly be material to the consumer's decision about whether to h ire the attorney. Indeed, the Supreme Court observed in Zauderer that "because it is p ro b a b ly rare that decisions regarding consumption of legal services are based on a c o n s u m e r's assumptions about qualities of the product that can be represented visually, illu stra tio n s in lawyer's advertisements will probably be less likely to lend themselves to m a te ria l misrepresentations than illustrations in other forms of advertising." Zauderer, 4 7 1 U.S. at 648-49.4 Similarly, if consumers saw Andy Griffith endorsing a law firm as th e TV character "Matlock," they would be capable of understanding that Griffith is a p a i d celebrity endorser. And a consumer seeing a law firm advertised as "heavy hitters" o r "super lawyers" would not believe that the lawyers would automatically be superior to o t h e r lawyers, much less that the lawyers actually possess superhuman powers.

The New York Bar's Ethics Committee reached the same conclusion in c o n sid e rin g dramatizations in lawyer advertising: D ra m a tiz a tio n s of fictional events can be used in a radio or television a d v e rtis e m e n t in much the same way as a drawing or photograph can be u s e d in a print medium to illustrate a situation to the viewer, provided the d ra m a tiz a tio n is done in a way that is not false or misleading. Dramatization of an event that reasonably could occur . . . is not per se false o r misleading merely because the particular circumstances did not occur, th e services were not actually performed by the lawyer and the persons p o rtrayed (as well as the actors) are not past or present clients of the lawyer. F o r m a l Ethics Opinion 661 (N.Y. Ethics Comm. 1994).

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M o re o v e r, we are not aware of any body of evidence that would support the c o n c lu s io n that the prohibited practices are misleading or that the broad restrictions in the p ro p o s e d amendments are an effective means of attacking any problems they may pose. Restrictions on commercial speech cannot be upheld on the basis of "little more than u n s u p p o rte d assertions" without "evidence or authority of any kind." Zauderer, 471 U.S. a t 648. Rather, the state must be prepared to "back up its alleged concern" that particular s ta te m e n ts "would mislead rather than inform." Ibanez, 512 U.S. at 147. Nor is there any e v id e n c e that the targeted forms of communication could not be remedied without p ro h ib itin g the speech entirely, such as by requiring a disclaimer in certain cases. In re R M J , 455 U.S. at 203 ("[T]he States may not place an absolute prohibition on certain typ e s of potentially misleading information . . . if the information may be presented in a w ay that is not deceptive."). T h e Supreme Court has emphasized that the First Amendment generally does not to le ra te restrictions on commercial speech that are premised "on the offensive assumption th a t the public will respond irrationally to the truth." 44 Liquormart, Inc. v. R.I., 5 1 7 U.S. 484, 503 (1996). The Court has also "reject[ed] the paternalistic assumption" th a t consumers of legal services "are no more discriminating than the audience for c h ild re n 's television." Peel, 496 U.S. at 105. Indeed, a state's general distaste for lawyer a d v e rtis e m e n ts does not allow it to restrict truthful, non-misleading advertising to any g re a te r extent than it can restrict similar advertising in other industries. Zauderer, 471

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U .S . at 646-47 ("Prophylactic restraints that would be unacceptable as applied to c o m m e rc ia l advertising generally are [] equally unacceptable as applied to [attorney] a d v e rtisin g ."). Yet, the restrictions on advertising under the proposed amendments would b e unthinkable in other fields of commerce. For example, a state could never justify r e g u la tin g advertisements for athletic shoes to prohibit the use of actors to play athletes, re f ere e s, or spectators; the depiction of sports stadiums, tracks, or fields; the d ra m a tiza tio n of sporting events; the use of celebrities; or the use of mottos that imply ef fe ctiv en ess (for example, "Be like Mike"). B e c au s e the proposed amendments would absolutely prohibit forms of commercial s p e e c h without evidence that these forms of speech are actually, or even potentially, m is le a d in g , the amendments would be an unconstitutional restriction on attorney a d v e rtis in g and for this reason should be withdrawn. B. T h e Proposed Amendments' Required Disclosures Would Chill Protected F ir s t Amendment Expression.

S e c tio n 1200.6(e) imposes additional requirements on a wide range of speech that w o u ld cover most statements about a lawyer's abilities and past successes, such as s ta te m e n ts of the quality of a lawyer's services, statements of comparative advertising, te stim o n ia ls by former clients, and "statements that are reasonably likely to create an ex p ec tation about results." § 1200.6(e)-(f). Although these forms of advertising are a m o n g the most relevant information a consumer could rely on in choosing an attorney,

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th e proposed amendments inexplicably subject these types of statements to special re s tric tio n s that, in some cases, would effectively prohibit them. F irs t, under the proposed amendments each such statement would have to be " o b jec tiv e ly verified" by the lawyer. § 1200.6(f)(2). No exception is made for statements th a t are not susceptible to objective verification. A bar magazine's ranking of an attorney a s one of the "Ten Best Trademark Lawyers in New York," or the opinion of a former c lie n t that an attorney is an "excellent litigator" would not be capable of objective v e rif ic a tio n , and the lawyer would therefore be prohibited from advertising this sort of f a v o ra b le recognition. A wide range of truthful and non-misleading advertising would th u s appear to be completely forbidden by this rule. M a n y of New York's largest law firms have statements on their web sites that e ith e r characterize the quality of their services or would tend to create an expectation a b o u t results. For example, the web site of Skadden, Arps, Slate, Meagher & Flom states th a t "Skadden's diversified practice enables us to offer solutions to the most challenging le g a l issues in virtually every area of corporate law, providing the specific legal advice c lie n ts need to compete most effectively in a global business environment," and that " [ f ]o r more than 55 years, the firm has advised on many of the most significant corporate a n d litigation matters worldwide." See http://www.skadden.com/Index.cfm?contentID=4. White & Case claims that is it "known for unusual effectiveness in helping clients a c co m p lis h their objectives in environments others find daunting and unfamiliar."

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h ttp ://w w w .w h ite c as e .c o m / a b o u t/. Weil, Gotshal & Manges claims to be "a leader in the m a rk e tp la c e for sophisticated, international legal services" and to be "in the vanguard of th e legal industry." http://www.weil.com/wgm/pages/Controller.jsp?z=a&sz=0. Nobody w o u ld claim that these law firms are engaging in false advertising, but the proposed a m e n d m e n ts would nevertheless subject these claims to the requirement of objective v e r i f i c a ti o n . Furthermore, each statement falling within this broad category of advertisement w o u ld have to be accompanied by an intrusive disclaimer, which would have to be spoken a lo u d in television and radio advertisements. § 1200.6(f)(3) ("Prior results cannot and do n o t guarantee or predict a similar outcome with respect to any future matter, including yo u rs , in which a lawyer or law firm may be retained."). The length of this disclaimer w o u ld cause it to consume an unacceptable portion of time in a fifteen- or thirty-second te le v is io n or radio commercial and an unacceptable amount of space in other forms of a d v e rtis e m e n ts , such as business cards, yellow-pages listings, and billboards. Although d isc lo su re requirements are usually preferable to an outright ban, the Supreme Court in Z a u d e r e r recognized that unjustified or overly burdensome disclosure requirements can c h ill commercial speech and thereby themselves violate the First Amendment. 471 U.S. a t 651. Thus, the First Amendment does not permit a disclaimer requirement in the a b s e n c e of evidence that the regulated form of speech is misleading. Ibanez, 512 U.S. at 1 4 6 -4 7 . A state "is not relieved of its burden to identify a genuine threat of danger simply

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b e c au s e it requires a disclaimer, rather than a complete ban on . . . speech." Mason v. F la . Bar, 208 F.3d 952, 958 (11th Cir. 2000). We know of no proof that any of these forms of speech are particularly likely to m isle a d consumers. On the contrary, consumers are unlikely to make the entirely irra tio n a l conclusion that an attorney's success in one case would necessarily lead to s u c c e s s in a different, unrelated case. See Thompson v. W. States Med. Ctr., 535 U.S. 3 5 7 , 374 (2002) ("We have [] rejected the notion that the Government has an interest in p re v e n tin g the dissemination of truthful commercial information in order to prevent m e m b e r s of the public from making bad decisions with the information."). Even if, th e o re tic a lly, consumers were misled by this sort of advertising, they would be set straight a s soon as they consulted with attorneys regarding the merits of their individual claims. Attorneys who advertise for clients, particularly those who represent their clients on a c o n tin g e n c y basis, have no incentive to trick consumers into pursuing legal claims that h a v e no reasonable probability of succeeding in court, and there is no evidence that this s o rt of trickery is in fact occurring. A separate, equally unjustified disclaimer provision requires that the words " A tto rn e y Advertising" must appear in all attorney print advertising, and a statement that th e advertisement contains "an advertisement for legal services" must appear in all a tto rn e y television and radio advertisements. § 1200.6(g)-(h). There is no evidence, h o w e v e r, that consumers do not recognize attorney advertisements when they see them, or

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th a t there is a widespread problem with attorneys disguising their advertisements in some d if f ic u lt-to -re c o g n iz e form. Furthermore, when combined with the broad definitions of a d v e r tis in g and solicitation in the proposed rules, attorneys would be required to use these d is c la im e rs in a wide variety of communications not typically considered to be a d v e rtis in g -- s u c h as articles in law journals, press releases, nonprofit educational m a te r ia ls , and web sites or blogs about developments in the law. By flagging these c o m m u n ic a tio n s as advertising, even though they may not be primarily designed to attract c lie n ts for pecuniary gain, the proposed amendments dramatically increase the likelihood th a t the communications will not reach their intended recipients. For example, a recipient o f an educational brochure by a nonprofit legal services organization would likely discard th e brochure if it were prominently labeled "Attorney Advertising." Similarly, an email w ith the subject line "ATTORNEY ADVERTISING" in all-capital letters, as required by th e rule, would likely be deleted by the recipient without being read and might be blocked b y a spam filter. § 1200.6(h). In short, the proposed rules would prohibit or unreasonably burden a wide range of s p e e ch for which there is no evidence that consumers would be misled. Instead of h e lp in g consumers, the proposed rules would serve only to stifle legitimate competition, m a k in g it more difficult for consumers to learn of their rights and ultimately making legal s e rv ic e s more expensive for everyone.

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III.

T h e Proposed Amendments Related to Internet Speech Are Burdensome, U n w o r k a b le , and Would Unconstitutionally Chill Speech. T h e proposed rules would explicitly extend to all forms of communication on the

In ter n e t, including web sites, email, and instant messaging. In the context of the Internet, th e rules would impose onerous restrictions that would severely chill both commercial a n d noncommercial Internet speech. F irs t, the proposed amendments would impose burdensome reporting and recordk e e p in g requirements on Internet speech that would be effectively impossible to comply w ith . Each time a web page is modified, the rules would require the page to be printed a n d kept on file for a period of at least a year. § 1200.6(n). Furthermore, the rules would re q u ire an additional printed copy of the web site to be sent to the state attorney d is c ip lin a ry committee. § 1200.6(o)(iii). Given the broad definition of advertising and s o lic ita tio n , these requirements would apply to the web pages of nonprofit organizations e m p lo yin g attorneys, legal blogs, and even an attorney's personal home page. It is not u n c o m m o n for the web sites of public interest organizations and large law firms to have w e b sites that would fill hundreds of printed pages. For example, ACLU's web site, one o f its primary public education tools, comprises hundreds or even thousands of pages of m a te ria ls concerning civil liberties issues. In addition to descriptions of the cases worked o n by ACLU's lawyers and legal blogs, this web site includes legislative updates, position p a p e rs , historical records, activist tools, and fundraising appeals. PCLG and NYCLU

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s im ila rly use their web sites for a wide variety of public education purposes, including e d u c a tio n concerning cases worked on by their lawyers. Complying with the rule would in v o lv e an inordinate cost for the Commenters and countless other nonprofit o r g a n i z a tio n s and attorneys in New York, and would generate untold amounts of useless p ap erw o rk for these attorneys and nonprofit organizations, and for the disciplinary c o m m is s io n . T h e requirement of paper records would undermine one of the key advantages of th e web--the ease of updating information. Many attorneys, law firms, and nonprofit o rg a n iza tio n s that employ lawyers update their web sites often, perhaps even on a daily b a sis . ACLU's web site is updated up to several times each day by its lawyers and n o n la w ye rs responsible for educating the public about the ACLU's mission. Attorney b lo g s are typically updated multiple times every day and, in some cases, multiple times e v e ry hour. Yet, the rules would explicitly subject attorneys to the record-keeping re q u ire m e n ts after each such "modification." § 1200.6(n). To make matters worse, the d e f i n itio n of "computer-accessed communication" includes links from a web site, § 1200.1(m), and the rules therefore appear to require the same record keeping re q u ire m e n t for all pages linked to by the attorneys' web page. The same rules would a lso apply to email sent by lawyers to public listservs, and even to private email (in c lu d in g attachments), chats, or instant messages if the communication "concern[s] the a v a ila b ility for professional employment of a lawyer or law firm." § 1200.1(l). It is no

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e x a g g era tio n to say that the burdens imposed under these rules would render the Internet e s s e n tia lly unusable by many attorneys and nonprofit organizations that employ attorneys. The rules also propose problematic restrictions on the use of domain names, req u iring attorneys to use a domain name that includes the name of the lawyer or law firm u n le ss certain additional restrictive requirements are met. § 1200.7(e). Many legal blogs an d legal-oriented web sites, however, are not primarily designed as advertisements for a la w ye r or law firm and tend to have names different from the names of the attorneys who o p e ra te them. For example, the Consumer Law & Policy Blog, co-sponsored by Public C itiz e n , has the domain name http://www.clpblog.org/. Despite its name, nothing about th e web site is deceptive or likely to mislead consumers. Similarly, the ACLU s u m m a riz e s its work in the area of free speech on a page with the domain name h ttp ://w w w .a c lu .o rg /f re e sp e e ch /in d e x .h tm l. Although this URL does not include the n a m e of any ACLU attorney working on its First Amendment cases, nothing about this w e b site is deceptive or likely to mislead consumers. Furthermore, the rule does not s p e c if y whether some portion of a lawyer or law firm's name, or a reasonable derivation o f the name, can be used. Most major law firms use domain names that contain less than th e firm's full name or an acronym of the law firm's name. Thus, Skadden, Arps, Slate, M e a g h er & Flom LLP is at http://skadden.com/, not h ttp ://s k a d d e n arp s s la te m e a g h e ra n d f lo m llp .c o m / , and O'Melveny & Myers LLP is at h ttp ://w w w .o m m .c o m . In domain names, there is a premium on brevity, and

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u n r e a so n a b l y long domain names would put a substantial burden on lawyers, law firms, a n d nonprofit organizations with web pages. In the event a URL does not contain the name of the lawyer or law firm, the rule s ta te s that the lawyer can "in no way attempt[] to engage in the practice of law using the d o m a in name." § 1200.7(e)(2). This rule is ambiguous because it is unclear whether the ru le is intended to prohibit attorneys from using a domain name in advertising (as, for e x a m p le , eBay.com routinely uses the ".com" after its name in advertising jingles), or w h e th e r it is instead intended to prohibit attorneys from giving legal advice on these web s ite s. Either way, the rule serves no legitimate purpose and should be withdrawn. Under th e former interpretation, attorneys would be prohibited from listing their web addresses o n business cards or in yellow-pages listings, making it difficult for potential clients to f in d their web sites. Under the latter interpretation, the rule would prohibit attorneys from g iv in g legal advice over the Internet, a result that would needlessly restrict access by c o n s u m e rs to free legal advice provided by legal services organizations and by attorneys w h o answer consumers' questions in online message boards and discussion forums. The s ta te has no legitimate interest in restricting these activities. T h e rules also would impose other untenable restrictions that would force web s ite s and email to be cluttered and unattractive while serving no apparent purpose. Each w e b site or email falling under the broad definitions of advertising or solicitation would h a v e to be branded with the words "Attorney Advertisement" and include the name,

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o f f ic e address, telephone number, and list of jurisdictions in which the lawyer is licensed to practice law. § 1200.6(h), (j) & (k). None of this information would make sense to d is p la y on web pages other than a lawyer's or law firm's home page, nor would it make s e n se in the context of most email. Even worse, in the event a domain name does not c o n ta in the name of the attorney or firm, a web page must include the actual name of the la w ye r or firm in a type size as large as the largest type size used on the site. § 1200.7(e)(1). The Consumer Law & Policy Blog has a banner headline in a 60-point f o n t, and it would thus have to display its name in an equivalent, unreasonably large size. For nonprofit organizations that employ several lawyers, each lawyer's name would a p p a re n tly have to be displayed in this size. This requirement would require the C o m m e n te rs to fill a large portion of their home pages with such material and drive away m a n y, if not most, readers. F in a l ly, the proposed rules would completely restrict pop-up advertisements, re g a rd le s s of whether these advertisements are deceptive or misleading. § 1200.6(i)(1). Presumably this amendment is based on the assumption that pop-up advertisements are an in tru s iv e form of advertising, but we are not aware of any evidence that Internet c o n su m e rs are deceived or unduly influenced by pop-up ads. It seems likely that c o n su m e rs at this point are familiar with this form of advertising, which, although s o m e tim e s annoying, can be closed with a single click (or eliminated with pop-up b lo c k in g software) and is therefore at least as easy to dispose of as mailed solicitations.

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In d e e d , this provision seems entirely motivated by a distaste for this particular form of a d v e rtis e m e n t. A state may not, however, prohibit speech on grounds of taste. See Z a u d e r e r, 471 U.S. at 648 ("[T]he mere possibility that some members of the population m igh t find advertising embarrassing or offensive cannot justify suppressing it."). T h e burdens imposed on attorneys under the proposed rules are totally at odds with th e promise of the Internet as a simple and inexpensive means of mass communication. Imposing such severe restrictions would violate the First Amendment by unreasonably b u rd e n in g a wide range of commercial and noncommercial speech. For this independent re a so n , the proposed amendments should be withdrawn. C o n c lu s io n T h e rules in their current form are an unconstitutional curtailment of both c o m m e rc ial and noncommercial speech. The rules appear to be motivated by a basic d is c o m f o r t with attorney advertising. The Supreme Court has squarely held that d is c o m f o r t is not a legitimate basis on which to adopt rules regulating attorney a d v e rtis in g . See Zauderer, 471 U.S. at 647-48. Mere amendments to the rules, even if they ameliorated some of the more objectionable sections, would not solve this core p ro b le m . We therefore urge that the proposed rules be withdrawn in their entirety, and th a t the state instead rely on enforcement of § 1200.6(b)(1)'s restriction on false, d e c ep tiv e , or misleading advertising to vindicate its legitimate interest in protecting c o n s u m e r s.

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