Second circuit: rule on attorney 'specialists' is unconstitutional

For lawyers, there are many strings attached to the word "specialist."

The American Bar Association's model rules, for instance, say a lawyer who holds himself out to be a specialist must be certified by an organization approved by the state or accredited by the ABA. The name of the organization must be identified when the lawyer, whether in advertisements or elsewhere, calls himself a specialist.

Rule 7.4 of the New York Rules of Professional Conduct is more demanding. Lawyers here must name the organization, and this disclaimer must be "prominently made":

[1] The [name of the private certifying organization] is not affiliated with any governmental authority[,] [2] Certification is not a requirement for the practice of law in the State of New York and [3] does not necessarily indicate greater competence than other attorneys experienced in this field of law.

The New York rule is also unconstitutional, according to the U.S. Court of Appeals for the Second Circuit. In an opinion Monday, the court sided with Buffalo lawyer J. Michael Hayes, who challenged the rule after the New York attorney grievance committee investigated him over his billboard advertisements and letterhead.

Hayes, who is certified by the ABA-approved National Board of Trial Advocacy, placed ads on two billboards in Buffalo in 1999 identifying himself as a specialist. They included the disclaimer in six-inch letters, one inch larger than what the federal government required for cigarette warnings on billboards.

The grievance committee questioned whether the font size satisfied the "prominently made" requirement. It also decided Hayes was required to have the 40-word disclaimer on his letterhead, since it referred to him as "board certified" (but not as a specialist).

In 2001, Hayes asked a federal judge to declare the rule unconstitutional. He lost a bench trial, but the Second Circuit, ruling Monday, found that the New York rule violates his freedom of speech and is unconstitutionally vague.

The court was OK with the first part of the disclaimer - requiring lawyers to state the certifying organization isn't affiliated with the government - but the remaining two "cannot survive First Amendment scrutiny," wrote Judge Jon Newman.

The Second Circuit also ruled that the "prominently made" language rendered the disclaimer unconstitutionally vague, since not even the grievance committee could say what it means.

"Because the prominence requirement is not clear to those who sought to enforce it against Hayes's billboards, let alone to Hayes as a lawyer of ordinary skill and intelligence attempting to comply with it, it cannot validly be enforced against him in this context," the court wrote.

Hayes, 65 years old, said he isn't advertising as heavily as he was when he filed the challenge 10 years ago. Still, he said the decision was "great for the profession" and for the public.

"It's going to give people a choice. It's going to inform the public as to which lawyers do what," he said. Hayes reckons many lawyers thought better of seeking specialization, since the rule was so onerous.

Deanne Trippi, chairman of the grievance committee, did not immediately respond to requests for comment.

By Joe Palazzolo

Source: The Wall Street Journal