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Hayes v. Elmore

March 30, 2010

J. MICHAEL HAYES, ESQ., PLAINTIFF,
v.
JOHN V. ELMORE, ESQ,*FN1 IN HIS CAPACITY AS CHAIRMAN OF THE STATE OF NEW YORK ATTORNEY GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #43.

Plaintiff's complaint, as limited by the decision of the Hon. John T. Elfvin granting defendants' motion for summary judgment in part (Dkt. #30), challenges New York's Disciplinary Rule ("DR"), 2-105(c)(1), which regulates an attorney's ability to communicate certification by a private organization as a specialist in a particular area of law or law practice, as unconstitutionally vague. Dkt. #1. A non-jury trial was conducted on October 15, 2008. The parties agree that the issue to be resolved is whether DR 2-105(c)(1), is unconstitutionally vague. Dkt. #48, p.6.

FINDINGS OF FACT

1. Plaintiff, J. Michael Hayes, an attorney licensed to practice in the State of New York, was awarded Board Certification in Civil Trial Advocacy in 1995 by the National Board of Trial Advocacy ("NBTA"), an organization accredited by the American Bar Association. Stipulated Facts, ¶ 1.

2. There are only approximately 50 lawyers who have been certified by the NBTA and plaintiff believes he is the only such lawyer in New York State. Dkt. #48, p.116.

3. Plaintiff restricts his practice to plaintiffs' personal injury litigation. Dkt. #48, p.8.

4. The State of New York Attorney Grievance Committee for the Fourth Judicial Department ("Grievance Committee"), is empowered to investigate allegations of professional misconduct by attorneys practicing within its jurisdiction, including complaints of improper advertising. Exh. 48, ¶¶ 2-4.

5. Following an investigation by the Grievance Committee, complaints of professional misconduct may be resolved by dismissal, non-disciplinary Letters of Caution or formal discipline. Exh. 48, ¶ 5.

6. Although the Grievance Committee "shies away from giving advisory opinions" to avoid rendering opinions on incomplete facts and to conserve resources for its enforcement duties, during the course of its investigation of possible disciplinary violations, the Grievance Committee attempts to work with the attorney to correct violations and upon compliance with the disciplinary rule, routinely dismisses investigations without further action. Dkt. #48, pp.126, 130 & 133; Exh. 46, p.65 & Exh. 48, ¶ 6.

7. Effective June 30, 1999, DR 2-105(c)(1) provided that: 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."

Stipulated Facts, ¶ 4.

8. Sharon Stern Gerstman was Chair of the Special Committee on Lawyer Advertising and Lawyer Referral Service Regulation of the New York State Bar Association ("Advertising Committee"), during the time period in which DR 2-105 was amended to conform to the Supreme Court's decision in Peel v. Attorney Disciplinary Commission of Illinois, 496 U.S. 91, 110 (1990). Gerstman Declaration, ¶ ¶ 1 & 6.

9. Ms. Gerstman explained that the Advertising Committee adopted the "prominently made" requirement because they believed that phrase best conveyed the notion that it would be improper to display the disclaimer in a manner that was too small or too fast for an average viewer to receive the information in a meaningful fashion. Gerstman Declaration, ¶ 23.

10. The Advertising Committee surveyed other states with respect to their approach to disclaimers, and discerned that the majority of states utilized similar phrases, i.e., prominently displayed, conspicuously placed, clear and conspicuous, clearly and prominently labeled, rather than specifying a required type size or proportion. Gerstman Declaration, ¶ 24.

11. The Advertising Committee rejected requirements of specific font size or other precise measurement because of the large number of different media the advertising rules would encompass. Gerstman Declaration, ¶ 25.

12. In the second half of 1999, plaintiff contracted for two vinyls to be posted on a revolving basis on various billboards around Buffalo. Dkt. #48, p.24 & Exh. 32.

13. The main text of the billboard is as follows: INJURED... CONSULT A SPECIALIST J. MICHAEL HAYES 852-2707 69 DELAWARE AVE ! BUFFALO, NY with the disclaimer in smaller letters underneath. Exh. 47.

14. By letter dated November 17, 1999, the Grievance Committee questioned whether the disclaimer on plaintiff's billboard advertisement on the Kensington Expressway, which plaintiff recalled was in yellow lettering against a green ...


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