March 5 (Reuters) - A New York rule restricting how
attorneys can advertise their professional certifications
violates lawyers' First Amendment rights, a federal appeals
court ruled on Monday.
Buffalo trial lawyer J. Michael Hayes had sued the State of
New York Attorney Grievance Committee over a rule regarding
advertising. The rule required lawyers who identify themselves
as certified specialists to include a prominent disclaimer
stating that certification is not required to practice law and
does not indicate greater competence. The U.S. Court of Appeals for the 2nd Circuit found the disclosure requirement infringed
on Hayes' free speech rights.
Hayes, who specializes in personal injury trials and has
taught at University at Buffalo Law School, received board
certification in civil trial advocacy from the National Board of
Trial Advocacy in 1995. After he touted his distinction on
billboard ads, the State of New York Attorney Grievance
Committee questioned whether the print size of his disclaimer
was large enough.
In 2000, the committee launched a follow-up investigation
into Hayes' letterhead, which included the board certification
without any disclaimer. Faced with a threat of disciplinary
action, Hayes sued the committee in 2001 in the Western District
of New York, challenging the constitutionality of the disclosure
The district court upheld the rule, concluding that New York
had a strong interest in protecting consumers from potentially
misleading attorney advertisements. But the 2nd Circuit reached
a different conclusion, finding that parts of the disclaimer
created more confusion than they cleared up.
The required assertion that specialization does not indicate
greater competence "has a capacity to create misconceptions as
least as likely and as serious as that sought to be avoided,"
Judge Jon Newman wrote for the two-judge panel. Board
certification requires lawyers to have been lead counsel in at
least five trials, to have handled at least 100 cases and to
pass an extensive examination -- all indicators of superior
qualification, the court found.
"There are many lawyers who are qualified to take this exam
but who have not done so because New York State has been so
restrictive in its advertising requirements," Hayes said. He
said the ruling will help shed light on the quality of lawyers'
work, allowing the public to make informed decisions.
The New York Attorney General's Office did not respond to a
request for comment.
The court did uphold part of the rule, requiring lawyers to
note that the certifying organization is not affiliated with the
government. But it added that Hayes did not have to meet the
requirement until the committee provides guidance on how
prominent the disclaimer must be.
Forty-eight states have professional rules that allow
lawyers to identify themselves as specialists. Thirty-two of
those states require the certification to come from an
organization approved by the state or the American Bar
Association, and for the name of the body to be clearly
The case is J. Michael Hayes v. State of New York Attorney
Grievance Committee of the Eighth Judicial District et al, U.S.
Court of Appeals for the 2nd Circuit, No. 10-1587.
For Hayes: Pro se
For the State of New York Attorney Grievance Committee:
Simon Heller, Alison Nathan and Nancy Spiegel of the New York
State Office of the Attorney General.
(Reporting By Terry Baynes)
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