The Second Circuit Court of Appeals ruled this week that two provisions of Rule 7.4 of the New York Rules of Professional Conduct are invalid.
Buffalo attorney J. Michael Hayes challenged the provisions, which mandated disclaimers for attorneys who advertised as legal specialists in various fields, arguing that the disclaimer requirement was unconstitutionally vague and violated his free speech rights.
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: " 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."
Hayes and the New York Attorney Grievance Committee of the Eighth Judicial District went back and forth over whether Hayes' advertising satisfied the disclaimer requirements after the rule was enacted. Though the Grievance Committee offered no direction as to how attorneys should satisfy the prominence requirement for Rule 7.4, the Committee said that Hayes' billboard disclaimers were not prominent. The Committee also questioned how Hayes, a civil practitioner who was awarded Board Certification in Civil Trial Advocacy by the National Board of Trial Advocacy, had referred to himself as a "Board Certified Civil Trial Specialist" in advertising and on his letterhead.
In December 2001, Hayes sued the Grievance Committee, seeking a declaration that the disclaimer requirement was unconstitutional, both facially and as applied to his advertising.
The district court ruled against Hayes. This week, the Second Circuit Court of Appeals reversed that decision, noting that the disclaimers created confusion rather than clarity, reports Thomson Reuters News & Insight.
While the Second Circuit ruled that the state could require lawyers to tell consumers that a specialization-certifying agency is not government-agency-affiliated, it found that the remaining legal specialist disclaimers did not satisfy the Central Hudson commercial speech regulation test.
- Hayes v. State of New York Attorney Grievance Committee (FindLaw's CaseLaw)
- 2nd Circuit Nixes Confusing Disclaimer Required of NY Attorneys Advertising Specialist Certification (ABA Journal)
- Size Matters: Madoff Victims Lose Appeal Due to 15-Page Limit? (FindLaw's Second Circuit Blog)