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'Heavy Hitters' law firm wins free-speech ruling on ads

By The Associated Press
07.25.07

SYRACUSE, N.Y. — "The Heavy Hitters" can't start hitting home runs again just yet, but at least they've reached base.

Senior U.S. District Court Judge Frederick J. Scullin Jr. has decided that key parts of state rules enacted earlier this year to regulate lawyer advertising in New York are unconstitutional because they prohibit protected free speech under the First Amendment. The ruling released July 23 covered a provision that had prevented the Syracuse personal-injury firm of Alexander & Catalano from billing itself as "The Heavy Hitters."

"Those who regulate lawyers must take the necessary steps to see that the regulation of such advertising is accomplished in a manner consistent with established First Amendment jurisprudence," Scullin wrote in his 30-page decision.

However, Michael Colodner, counsel for the Office of Court Administration, said yesterday that he had asked the state attorney general's office to appeal the decision. Colodner said he wanted a definitive ruling from the 2nd U.S. Circuit Court of Appeals in New York City.

"We are optimistic (that we will prevail)," attorney James L. Alexander said. "What all the cases decided by the Supreme Court over many decades (said) was that a state cannot restrict free speech. They have to prove there's a necessity, that the public is being harmed. The public didn't complain. There was no public outcry."

The new regulations, which apply to all forms of lawyer advertising, took effect in February and were approved after much debate within the legal community. The rules include: a ban on testimonials by current clients or paid endorsements; a ban on nicknames, mottos or trade names that suggest an ability to obtain results; a ban on re-enactments of events that are not authentic; and a ban on depictions of the use of a courthouse or a courtroom.

Alexander & Catalano had joined Public Citizen Inc., a Washington, D.C.-based nonprofit public-interest group founded by Ralph Nader, in filing a federal lawsuit challenging the new rules. Gregory A. Beck of the Public Citizen Litigation Group argued last month in court that the new rules placed onerous restrictions on both commercial and noncommercial speech and violated the First and 14th Amendments.

Although Scullin wrote that "without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years," he concluded that First Amendment protections of free speech superseded the state's interest in regulating attorney advertising.

"I think that it was a victory for all the people in the state," attorney Peter Catalano said. "It was more a fight over the constitutional right to free speech."

The state had argued in court that advertisements had to contain relevant, factual, verifiable information because outrageous claims might mislead the public.

"Being a lawyer, I respect the system, but we agree with the judge's decision," Alexander said. "For the state's rules to survive, there would be sterile advertising, unappealing advertising, and ineffective advertising. We don't want to reverse 30 years of jurisprudence.

"We don't want to stick this in anybody's face," Alexander said. "It affects lawyers throughout the state, but more than lawyers it protects the public to get uncensored information. The public is used to seeing advertising that is entertaining, and they can make their own decisions. They're not being brainwashed. The public doesn't need the protection. They've been dealing with it for decades."

Alexander & Catalano had billed itself in most of its advertisements as "The Heavy Hitters." The firm abandoned the motto for fear of running afoul of the new rules' prohibition against implying the ability to obtain results.


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Justices put hold on ruling that attorneys can't advertise in two top-lawyer lists while publishers challenge decision on First Amendment grounds. 08.21.06

New rules require prior OK of Fla. lawyers' TV, radio ads
State high court endorses guidelines requiring attorneys to get Florida Bar approval for advertisements before airing them. 11.05.06

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George Mason team wins in a tricky case
By David L. Hudson Jr. Competition hypothetical explores commercial-speech issue of how attorneys may or may not advertise. See Legal Times blog 02.26.07

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