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By John Caher
New York Law Journal
02-05-2007

A high-volume, heavy-advertising New York personal injury law firm and a Washington, D.C., advocacy group are apparently the first to challenge the new attorney advertising restrictions that took effect Thursday.

On the same day the new rules were implemented, Alexander & Catalano, with offices in Syracuse and Rochester, N.Y., and Public Citizen Inc. filed a federal lawsuit in the Northern District alleging the restrictions violate the constitutional right to free speech and impose anti-consumer limits on lawyers' ads.

"The rules overall are a restriction on free speech," Gregory A. Beck of the Public Citizen Litigation Group said in an interview. "They are not based on a concern that what is said is false, but on a concern of what some people think is poor taste. The [U.S.] Supreme Court has made clear you cannot regulate speech based on taste."

Alexander v. Cahill comes as little surprise since several attorneys and advocates had questioned the constitutionality of the revised advertising rules in the Code of Professional Responsibility.

The Federal Trade Commission objected to an earlier draft of the proposed rules, as did a group called New Yorkers for Free Speech. That group, which was formed by attorneys active with the New York State Trial Lawyers Association in response to the presiding justices' initial plan, had retained First Amendment expert Floyd Abrams of Cahill Gordon & Reindel. After the FTC, the lawyers' group and about 98 others commented on the proposed restrictions, the presiding justices altered them. In their final form, the rules are clearer and somewhat less restrictive.

But the suit filed Feb. 1 alleges that the rules are still too broad and too focused on the content of an ad rather than its accuracy.

"The amendments appear to be motivated solely by a general distaste for certain forms of lawyer advertising and by discrimination against a certain class of attorneys who assist injured consumers," according to the lawsuit.

Alexander & Catalano bills itself as the "heavy hitters," a moniker that is probably barred under the new rules. The firm recently removed the slogan from its advertising materials, "at significant expense and, as a result, will lose benefit of widespread public recognition of its slogan," according to the lawsuit.

The personal injury firm said it also fears that its routine use of phrases like "think big" and its promise to give clients "a big helping hand" in securing large verdicts or settlements is now prohibited.

Additionally, Alexander & Catalano complains that is has been forced to drop its splashy TV ads, which in the past have depicted its lawyers as towering giants leaping onto rooftops and running to the client's house.

"Because these scenes might be considered 'techniques to obtain attention' and because the fictional traits exhibited by lawyers in these scenes do not appear to be relevant to the selection of counsel, Alexander & Catalano has been forced to alter its advertising campaign to stop running these advertisements," the suit alleges. "As a result, the firm's ability to market its services has been significantly impaired."

Public Citizen's gripe with the new rules centers largely on a provision that bars counsel from contacting potential clients or their families for 30 days after a personal injury or wrongful death incident. It contends that restriction could prevent civil justice groups from, for example, communicating with protesters at a political demonstration who have been abused by police officers. Public Citizen argues that the rules unconstitutionally restrict noncommercial speech.

"The plain language of the definition covers solicitation of potential clients for pro bono representation by Public Citizen received by potential clients in New York," according to the lawsuit. "The rules would apply even to the solicitation of clients to challenge the constitutionality of the disciplinary rules themselves."

In addition to Beck, Scott L. Nelson and Brian Wolfman, also of the Public Citizen Litigation Group, are representing the plaintiffs. The attorney general will represent the defendants.

The Office of Court Administration declined comment.

Just last month, Former Appellate Division, 4th Department, Presiding Justice Eugene F. Pigott Jr., who was instrumental in formulating the new rules, told the New York State Bar Association that he had no constitutional qualms about the revised restrictions (NYLJ, Jan. 26). In fact, Pigott, now of the Court of Appeals, opined that even the earlier draft that had attracted the wrath of Abrams and the Federal Trade Commission would have survived constitutional scrutiny.

Abrams said that he will not challenge the rules.

"The most important constitutional vices in the original draft that affected my client have been remedied," he said. "While there may be other problems, the core problems my client was concerned about have been dealt with."