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Alexander v. Cahill

March 12, 2010

JAMES L. ALEXANDER, ALEXANDER & CATALANO LLC, AND PUBLIC CITIZEN, INC., PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,
v.
THOMAS J. CAHILL, IN HIS OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE APPELLATE DIVISION OF THE NEW YORK COURT OF APPEALS, FIRST DEPARTMENT, DIANA MAXFIELD KEARSE, IN HER OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE SECOND AND ELEVENTH JUDICIAL DISTRICTS, GARY L. CASELLA, IN HIS OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE NINTH JUDICIAL DISTRICT, RITA E. ADLER, IN HER OFFICIAL CAPACITY AS CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT, MARK S. OCHS, IN HIS OFFICIAL CAPACITY AS CHIEF ATTORNEY FOR THE COMMITTEE ON PROFESSIONAL STANDARDS FOR THE APPELLATE DIVISION OF THE NEW YORK COURT OF APPEALS, THIRD DEPARTMENT, ANTHONY J. GIGLIOTTI, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE FIFTH JUDICIAL DISTRICT, DANIEL A. DRAKE, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE SEVENTH JUDICIAL DISTRICT AND VINCENT L. SCARSELLA, IN HIS OFFICIAL CAPACITY AS ACTING CHIEF COUNSEL FOR THE GRIEVANCE COMMITTEE FOR THE EIGHT JUDICIAL DISTRICT, DEFENDANTS-APPELLANTS-CROSS-APPELLEES.



SYLLABUS BY THE COURT

Defendants below, representing New York's Appellate Division, appeal from the decision of the United States District Court for the Northern District of New York (Scullin, J.), granting summary judgment to Plaintiffs and invalidating content-based restrictions on attorney advertising in New York State. Plaintiffs below cross-appeal from so much of the District Court's opinion as granted summary judgment to Defendants, upholding a thirty-day moratorium on targeted solicitation following a specific incident. The District Court's opinion is AFFIRMED in part and REVERSED in part.

The opinion of the court was delivered by: Calabresi, Circuit Judge

Argued: January 22, 2009

Before: WALKER and CALABRESI, Circuit Judges.*fn1

New York's Appellate Division adopted new rules prohibiting certain types of attorney advertising and solicitation, which were to take effect February 1, 2007. The new rules barred, inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results. The amendments also established a thirty-day moratorium for targeted solicitation following a specific incident, including targeted ads on television or in other media. Plaintiffs, a New York attorney, along with his law firm and a not-for-profit public interest organization, challenged these provisions as violating the First Amendment. The District Court agreed in part-it declared most of the content-based rules unconstitutional, while upholding the thirty-day moratorium. Both Plaintiffs and Defendants timely appealed from portions of the District Court's decision adverse to them. For the reasons that follow, we conclude that the District Court properly granted summary judgment to Plaintiffs with respect to the content-based advertising restrictions, with the exception of the prohibition on portrayals of fictitious law firms. We likewise conclude that the District Court properly granted summary judgment to Defendants with respect to the thirty-day moratorium. Accordingly, we affirm the District Court's opinion in large part, and reverse in part.

BACKGROUND

A. The Parties

The Plaintiffs-Appellees-Cross-Appellants ("Plaintiffs") are an individual (James Alexander), a law firm (Alexander & Catalano), and a not-for-profit consumer rights organization (Public Citizen). Alexander is the managing partner of Alexander & Catalano, a personal injury law firm with offices in Syracuse and Rochester. Alexander & Catalano use various broadcast and print media to advertise. Prior to the adoption of New York's new attorney advertising rules, the firm's commercials often contained jingles and special effects, including wisps of smoke and blue electrical currents surrounding the firm's name. Firm advertisements also featured dramatizations, comical scenes, and special effects-for instance, depicting Alexander and his partner as giants towering above local buildings, running to a client's house so quickly they appear as blurs, and providing legal assistance to space aliens. Another advertisement depicted a judge in the courtroom and stated that the judge is there "to make sure [the trial] is fair." The firm's ads also frequently included the firm's slogan, "heavy hitters," and phrases like "think big" and "we'll give you a big helping hand." To date, no disciplinary actions have been brought against the firm or its lawyers based on firm advertising. The new rules, however, caused the firm to halt its advertisements for fear of such action.

Plaintiff Public Citizen is a D.C. not-for-profit corporation, with approximately 100,000 members nationwide, including roughly 10,000 in New York. Public Citizen Litigation Group is a division of Public Citizen that conducts, inter alia, pro bono constitutional litigation in state and federal courts on behalf of its clients. These organizations maintain a website and various blogs, and participate in distributing educational materials on various legal issues to the public. Defendants-Appellants-Cross-Appellees ("Defendants") are the chief counsels or acting chief counsels of the disciplinary committees whose jurisdiction lies within each of the four Judicial Departments of the New York Supreme Court, Appellate Division. The Appellate Division is authorized to discipline attorneys for professional misconduct. See N.Y. Judiciary Law § 90(2) (McKinney 2009). Pursuant to this authority, the four presiding justices of each of New York's four departments are responsible for adopting disciplinary rules, which set the parameters for professional conduct and provide for the discipline of attorneys violating the rules. The departments have, in turn, appointed the disciplinary committees of which Defendants are a part. These committees undertake investigations into complaints of attorney misbehavior. Following an investigation, Defendants are empowered to take a number of actions with respect to a complaint, including issuing a letter of caution or recommending that formal disciplinary proceedings be started. When formal disciplinary proceedings are deemed warranted, Defendants begin such proceedings in the Appellate Division. Accordingly, Defendants are responsible for enforcing the New York Code of Professional Responsibility and the attorney disciplinary rules promulgated thereunder.

B. The Appellate Division's Adoption of the New Rules

In June 2006, the presiding justices of the four departments of the Appellate Division approved for comment draft amendments to the then- existing rules. A press release explained that the new rules were designed to protect consumers "against inappropriate solicitations or potentially misleading ads, as well as overly aggressive marketing," and to "benefit the bar by ensuring that the image of the legal profession is maintained at the highest possible level." Following a comment period, the presiding justices issued final rules. These rules were set to take effect on February 1, 2007.

We consider below a subset of these final rules, which we subdivide into two categories. The first group of amendments imposes a series of content-based restrictions:

N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c):

(c) An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .

(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .

(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .

(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.*fn2

The second group of amendments imposes a thirty-day moratorium on certain communications following a personal injury or wrongful death event:

N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.52: Solicitation and Recommendation of Professional Employment

(b) For purposes of this Rule, "solicitation" means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

(e) No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

N.Y. Comp. Codes R. & Regs., tit. 22 § 1200.36: Communication after Incidents Involving Personal Injury or Wrongful Death

(a) In the event of a specific incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm representing actual or potential defendants or entities that may defend and/or indemnify said defendants, before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

(b) An unsolicited communication by a lawyer or law firm, seeking to represent an injured individual or the legal representative thereof under the circumstance described in paragraph (a) shall comply with [§ 1200.52(e)].*fn3

C. The Present Action and District Court Decision

Plaintiffs filed their complaint on February 1, 2007, the date on which the new rules were to take effect. They sought declaratory and injunctive relief from several of the new rules, including all those set forth above. Plaintiffs contended that these rules infringed their First Amendment rights because the rules prohibited "truthful, non-misleading communications that the state has no legitimate interest in regulating." Plaintiffs moved for a preliminary injunction against enforcement of the rules, and Defendants moved to dismiss the complaint for, inter alia, lack of standing. The District Court (Scullin, J.) reserved decision on Plaintiffs' motion and denied Defendants' cross-motion. Alexander v. Cahill, No. 5:07-cv-117, 2007 U.S. Dist. LEXIS 29823 (N.D.N.Y. Apr. 23, 2007). Thereafter, the parties stipulated to a set of facts and exhibits that became the basis for competing motions for summary judgment. On July 23, 2007, the District Court filed its Memorandum-Decision and Order granting partial summary judgment to Plaintiffs and partial summary judgment to Defendants. Alexander v. Cahill, 634 F.Supp.2d 239 (N.D.N.Y. 2007). Principally, the District Court found unconstitutional the disputed provisions of § 1200.50(c) set forth above, while concluding that the thirty-day moratorium provisions survived constitutional scrutiny.*fn4

Throughout its opinion, the District Court applied the test for commercial speech set forth in Central Hudson, which considers whether (1) the speech is protected by the First Amendment; (2) there is a substantial state interest to be achieved by the restriction; (3) the restriction materially advances the state interest; and (4) the restriction is narrowly drawn. See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 564-66 (1980). The District Court rejected Defendants' claim that "the State of New York could ban attorney advertising that was `irrelevant, unverifiable, [and] non-informational' without reference to the Central Hudson test." Alexander, 634 F.Supp.2d at 246 n.4. It concluded: "Defendants have provided no legal support for this proposition, and the Court finds none. Although these characteristics may be evidence that an advertisement is misleading, they do not by themselves constitute a justification for banning commercial speech in the form of attorney advertising." Id.

Turning to the amendments that restricted potentially misleading advertisements, including the disputed provisions of § 1200.50(c), the District Court found that Defendants' stated interest in protecting consumers from misleading attorney advertisements was a substantial one. Id. at 247-48. Under Central Hudson's penultimate prong, which requires that the regulation materially advance the state's interest, however, the District Court concluded that the record was "notably lacking." Id. at 248. The District Court gave considerable weight to Defendants' reliance on the New York State Bar Association's Task Force Report on Lawyer Advertising, but concluded that the Report provided sufficient support only for two amendments: the prohibition on the portrayal of judges in attorney advertisements, and the prohibition on the use of trade names that imply an ability to get results. Id. at 248-49. As to the remaining disputed portions of § 1200.50(c), the District Court emphasized that the Task Force Report had recommended disclosure and invigorated enforcement of existing rules, rather than any new content- based restrictions. Id. at 249. Finally, the District Court found that the two amendments that materially advanced New York's interest in preventing misleading advertising did not do so in a sufficiently narrowly tailored fashion. The District Court criticized Defendants for failing "to produce any evidence that measures short of categorical bans would not have sufficed to remedy the perceived risks of such advertising being misleading." Id. at 250. The District Court therefore concluded that all of the disputed portions of § 1200.50(c) failed the Central Hudson test. With regard to the thirty-day moratorium on contacting victims, the District Court reached the opposite conclusion. The District Court recognized that New York's moratorium is broader than the Florida moratorium sustained by the Supreme Court in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). Florida's moratorium was limited to direct- mail solicitation, while New York's provisions "extend by their plain language to television, radio, newspaper, and website solicitations that are directed to or targeted at a specific recipient or group of recipients." Alexander, 634 F.Supp.2d at 253. Nonetheless, the District Court concluded that New York's moratorium materially advanced state interests in protecting the privacy of citizens and guarding against the indignity of being solicited for legal services immediately following a personal injury or a wrongful death event, and did so in a reasonably proportionate manner. Id. at 253-55. The District Court relied on "an emerging consensus among authorities, state and federal, regarding the desirability of some form of moratorium," citing the Task Force Report's review of direct-mail moratoria in Florida and eight other states, the federal airline disaster moratorium (which prohibits not only direct- mail solicitation, but "unsolicited communications" generally for a forty-five day period, 49 U.S.C. § 1136), and the Supreme Court's opinion in Florida Bar. Alexander, 634 F.Supp.2d at 254. The District Court also noted "the existence of `ample alternative channels' for the public to receive information concerning legal services during the moratorium period-namely, general advertisements in any media, provided they do not reference a specific tragedy." Id. (quoting Florida Bar, 515 U.S. at 633-34).

DISCUSSION

This case calls on us once again to assess the scope of First Amendment protection accorded to commercial speech, and the measure of evidence a state must present in regulating such speech. Because this action was resolved on summary judgment, we review the District Court's decision de novo, drawing all factual inferences in favor of the non-moving party. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The Supreme Court has established ...


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