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 requirement.

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 identified.

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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