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J. Michael Hayes, Esq v. State of New York Attorney Grievance

March 5, 2012

J. MICHAEL HAYES, ESQ., PLAINTIFF-APPELLANT,
v.
STATE OF NEW YORK ATTORNEY GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, AND DEANNE M. TRIPI, IN HER CAPACITY AS CHAIR OF STATE OF NEW YORK ATTORNEY GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, DEFENDANTS-APPELLEES.*FN1



Appeal from the July 26, 2004, judgment of the United States District Court for the Western District of New York (John T. Elfvin, District Judge) and the March 31, 2010, judgment of the United States District Court for the Western District of New York (H. Kenneth Schroeder, Jr., Magistrate Judge), rejecting First Amendment and void-for-vagueness challenges to Rule 7.4 of the New York Rules of Professional Conduct concerning attorney specialization.

The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.

10-1587-cv

Hayes v. State of N.Y. Atty. Grievance Committee

Heard: June 6, 2011

Before: NEWMAN and LYNCH, Circuit Judges.*fn2

The Court of Appeals rules that enforcement of part of the disclaimer required by Rule 7.4 violates the First Amendment and that the lack of standards for enforcement of Rule 7.4 renders it void for vagueness as applied to Plaintiff-Appellant Hayes.

Reversed and remanded for entry of judgment in favor of the Plaintiff-Appellant.

This appeal concerns a First Amendment challenge to a New York rule requiring attorneys who identify themselves as certified specialists to make a prescribed disclosure statement. The statement must identify the certifying organization, which must have been approved by the American Bar Association ("ABA"), and must include a disclaimer concerning certification. Plaintiff-Appellant, J. Michael Hayes, Esq., appeals from the July 26, 2004, judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, granting summary judgment to Defendants-Appellees State of New York Attorney Grievance Committee of the Eighth Judicial District ("Grievance Committee") and Nelson F. Zakia, the then- chairman of the Grievance Committee with respect to Hayes's First Amendment claim. Hayes also appeals from the March 31, 2010, judgment of the United States District Court for the Western District of New York, H. Kenneth Schroeder, Jr., Magistrate Judge, rejecting, after a bench trial, Hayes's claim, based on unconstitutional vagueness, against the Grievance Committee and John V. Elmore, Esq., the then- current chairman. On appeal, the issue is whether Rule 7.4 of the New York Rules of Professional Conduct, codified at N.Y. Comp. Codes R. & Regs. tit. 22 § 1200.53(c)(1) (2011) ("Rule 7.4"),*fn3 which requires a prescribed disclaimer statement to be made by attorneys who state that they are certified as a specialist in a particular area of the law, either violates Hayes's freedom of speech or is unconstitutionally vague.

Because enforcement of two componentx of the required disclaimer statement would violate the First Amendment and because the absence of standards guiding administrators of Rule 7.4 renders it unconstitutionally vague as applied to Plaintiff-Appellants Hayes, we reverse with directions to enter judgment for the Plaintiff-Appellant.

Background

Hayes has been licensed to practice law in the State of New York since 1977, limiting his practice to representing plaintiffs in civil litigation. He has taught at the Buffalo Law School, lectured at New York State Bar Association programs, and published articles on civil litigation. In 1995 he was awarded Board Certification in Civi1 Trial Advocacy by the National Board of Trial Advocacy ("NBTA"),*fn4 an organization accredited by the American Bar Association. Thereafter Hayes began to refer to himself as a "Board Certified Civil Trial Specialist" in various advertisements, including his letterhead.

See Hayes v. Zakia, 327 F. Supp. 2d 224, 226 (W.D.N.Y. 2004). In August 1996, and again on November 1996, the Grievance Committee, which is appointed by the Appellate Division (Fourth Department) and which is empowered to investigate allegations of professional misconduct, including complaints of improper advertising, wrote to Hayes and took issue with his use of the term "specialist." Hayes agreed to include the name of the NBTA on his letterhead and in future telephone directory advertisements. See id.

On June 30, 1999, Disciplinary Rule 2-105(C)(1) of New York's Code of Professional Responsibility, N.Y. Comp. Cpdes R. & Regs. tit. 22 § 1200.10(c)(1), went into effect. DR 2-105(C)(1) is the predecessor of current Rule 7.4, which carries forward the same text. Rule 7.4 permits a lawyer certified as a specialist by an ABA-approved organization to state that fact provided the lawyer also makes a prescribed statement that includes a disclaimer about certification of 40 words plus the name of the certifying organization. Rule 7.4 states:

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: "[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 ...


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