The Second Circuit recently concluded that parts of a New York rule requiring attorneys who claim to specialize in a certain field make certain disclosure statements are unconstitutional, violating the First Amendment.
Michael Hayes, a Buffalo-based personal injury attorney, had claimed that Rule 7.4 of the New York Rules of Professional Conduct did not contain clear-cut standards for enforcement on the issue of attorney specializations. The federal appeals court agreed with him.
It all started in the mid-1990’s when the Attorney Grievance Committee for the Eighth Judicial Committee claimed that Hayes did not provide for the necessary disclosures on his letterhead and on a billboard advertising his legal services.
Hayes then initiated a declaratory judgment action seeking a declaration that the rule was unconstitutional. The district court judge and the magistrate judge presiding over the bench trial had previously rejected Hayes’s claims out of hand. The Second Circuit reversed the lower courts.
Rule 7.4 of the New York Rules of Professional Conduct provides that an attorney certified as a specialist can make such a claim in advertising if the organization certifying his specialty is identified and the following statements appear prominently in the advertisement:
 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 experience in this field of law.
The dispute originated when the grievance committee complained to Hayes that he had referred to himself as a “board certified civil trial specialist”. Hayes subsequently agreed to identify the name of the certifying organization on his letterhead and any future advertisements.
Three years later, Hayes advertised his services on billboards with the disclaimer. However, the grievance committee was not satisfied. They complained to him that the disclaimer was not large enough to satisfy the “prominently made” requirement of Rule 7.4. The committee never pursued this issue. However, a year later it notified Hayes that it was again investigating him—this time for a disclaimer made on another billboard advertisement and the appearance of his letterhead.
Hayes refused to concede that his advertisements ran afoul of Rule 7.4, instead claiming that the bulletin board satisfied the Rule and that he did not need the disclaimer on the letterhead because the letterhead only stated that he was board certified without claiming that he was a specialist in a particular field. The committee claimed that his use of the word “certified” was synonymous with a claim of specialization in a certain field.
Hayes then filed suit for declaratory judgment. The lower court granted summary judgment to the grievance committee, concluding that New York had a substantial interest in protecting the public from misleading attorney advertisements. The court found that Rule 7.4 sought to promote this rule, and the rule was drawn narrowly enough to only protect this interest. The district court did not find the rule vague on its face but held that there were fact issues regarding whether the rule was vague as it was being applied. The parties then submitted to a bench trial before a magistrate judge. At the end of the trial, the judge found for the grievance committee. Hayes then appealed to the Second Circuit.
The Second Circuit started by noting that it was not unconstitutional to require attorneys who claim to have a specialty to state that the organization certifying them is not connected to a governmental authority. The court then questioned the second requirement of Rule 7.4 which requires attorneys to state in advertisements that certification is not a requirement for the practice of law. The grievance committee claimed that this statement was necessary so that the public would not think that lawyers have to be certified to practice law, thereby leading the public to think that they had to choose attorneys who were certified as specialists. The court did not appreciate this argument and found it “strained”.
The court had an even bigger problem with the third requirement of Rule 7.4 which states that certification “does not necessarily indicate greater competence than other attorneys experienced in the field of law.” This statement could lead the public to think that a certified attorney is no better qualified than other attorneys with an unspecified amount of experience in the specialty area. In truth, the National Board of Trial Advocacy has stringent rules for certifying attorneys. The lawyer has to be lead counsel in a minimum of five trials, the lawyer has to be an active participant in a minimum of one hundred contested matters involving the taking of testimony, and he has to have passed an exam and had forty-five hours of continuing legal education. The attorney also has to devote at least thirty percent of his practice to the area of specialization.
These qualifications guarantee that the attorney being certified has a greater level of competence than lawyers who merely have some experience in the area. A statement to the contrary would be misleading, according to the court. The court found that this third required statement does not serve a substantial state interest, is too intrusive and is not supported by evidence in the record.
Hayes had pointed out that, ironically, the disclaimer on his first billboard was prominently made because it was even bigger than the health warnings on cigarette billboards. The court sided with Hayes finding that disclaimers of that size would be considered to be prominently made. Also, the court found that the rule’s requirements were so vague that a lawyer of average skill and intelligence could not reasonably determine how to comply with them.
Hayes’s win could very well spell the start of an upsurge in New York attorneys interested in obtaining certification in specific areas of practice.