By Mark David Blum, Esq.

Today it was announced in the media that the State of New York is putting into place new rules regulating advertising by lawyers. Among them are to be, “a 30-day moratorium on soliciting wrongful death or personal injury clients; 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.” Obviously, with these new rules, Americans will better be able to decide when and if they need legal help and how to go about getting it; or so thinks New York’s top judges.

I remember last October when this subject came up at a Continuing Legal Education Seminar. Attended by the Hon. Eugene F. Pigott, Jr. Presiding Justice, Appellate Division, Fourth Department … aka the guy who oversees my license and decides if I live or die, he presented then what was intended to be the new guidelines proposed for lawyer advertising. Specifically, announced that the Chief Justice of the Court of Appeals, Hon. Judith Kaye along with the Presiding Justice of each of the state’s four Appellate Divisions constitute the group that decides rules for attorney practice in New York. From what I heard, there had to be a consensus among them before a rule is passed. I concluded from what I heard yesterday, there are going to be some hard and severe rules limiting attorney advertising put into place in the very near future. Apparently, that consensus has been reached.

The Chief Justices make a good case for limiting lawyer advertising. Clearly, there are some very obnoxious lawyers out there who dominate the airwaves with more bluster than even Billy Fucillo can conjure. Watching the heavy hitters strike out to capture and dominate the personal injury market even makes my skin crawl. There is no doubt that clowns with J.D.s do not go far in building public confidence in the profession.

Justice Pigott cited just that reason as cause to put serious limits on advertising. He made clear he understands the point that advertising makes legal services and information available to the public and that doing so is necessary and good for the public. The Justice feels, however, that the public need can be met while at the same time reigning in the art and content of advertising.

Respectfully, he is wrong. He is not seeing the issue properly.

I agree that the public is served best by honorable, frank, and non-puffed up advertising. The public is also served, however, by the existence of those firms who market via obnoxious advertising. Being able to market to the masses and subsequently draw in volume, the public benefits by having firms out there who can handle the nickel/dime case that most attorneys will not handle. A personal injury case is labor intensive and can cost quite a bit to complete. If a law firm is handling them in volume, then the firm can realize enough of an overall profit and share costs, such that the lower dollar – lesser injured citizen can get relief. There is a place in society even for the Billy Fucillos.

Just from what I know in my life experience, the lawyers who are selected to give input and who have the ears of those in Power in government, tend to come from large firms, “respectable” firms, politically involved firms, … people who already have made their bones, established their place, and have their worlds all neatly organized. To them, obnoxious lawyer advertising offends their sanitized sensibilities. Let us not also forget, that these are the competitors who are making inroads into the small pot of available new clients. Firms like Bond Schoeneck & King will never take to the airwaves to mass market their product. But, their attorneys will serve on the Boards and have the ear of those who make decisions affecting the income of their colleagues.

Therein lays the fundamental problem. I am of the opinion, that at its heart, the campaign against attorney advertising has nothing to do with the image of attorneys in the public. Rather, I tend to believe that the decisions that are being made are based moreso on a personal prejudice against those attorneys who choose to market themselves as such. The Bond office, the Hancock office, the Hiscock office have no interest in the routine slip and falls, fender bender traffic accidents, nickel dime workplace injuries. That is not their clientele. The prejudice is not personal. It is however, such that the rule maker may be making the rule because he does not like the people at whom the rule is targeted.

I fear that these decisions are being made by persons who have no understanding of what it means to have to generate clients so as to be able to eat. Forgetting the public for a moment; the policy being advanced does not take into account the attorney’s own needs. Not all attorneys get whisked out of law school and into the protected world of corporate law and Wall Street. Some of us actually have to get out there and work hard to get the telephone to ring. How we engage in getting known to potential clients, so long as it is lawful, honorable, and not false, should not be the concern of the courts. A lawyer should be free to utilize whatever advertising and marketing techniques enable him/her to reach that segment of society targeted.

I don’t advertise in that medium or in that fashion. I very very rarely do personal injury cases. For all the reasons that Justice Pigott is offended, so too are the reasons I don’t engage in such activities. I personally do not want that reputation and I do not want to work that market. After all, some people talk about being a heavy hitter or a hammer. Others, just do it.

Those choices, however, are mine. It is patently unfair for a government entity to decide whether the content of speech or the manner of its presentation, meets some esoteric image of “LAWYER”. To quote Thomas Jefferson, “some men look at constitutions with sanctimonious reverence, and deem them like the ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment… laws and institutions must go hand in hand with the progress of the human mind… as that becomes more developed, more enlightened, as new discoveries are made, institutions must advance also, to keep pace with the times… We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors." I should not be required to fit the Court’s image of lawyer as it exists in literature. I should always be required to perform at the highest levels of professional competence. Television commercials in no way reflect legal acumen.

More offensive to me than limits on advertising which I don’t do anyway, is the manner by which these rules are about to take effect. The general consensus is that the ‘industry’ called ‘Law’ in New York is seen by government as a monopoly, and as such, government feels it can control every thought and action in this industry. They can draw a conclusion based on ‘fact finding’ and make a rule that is enforceable under pain of taking.

Justice Pigott said that the new rules limiting lawyer advertising will probably be put in place. He said that if anybody doesn’t like it, they can bring a First Amendment challenge.

That is when the hair on the back of my neck stood up; though my mouth remained tightly shut.

The irony of Justice Pigott’s statement became clear an hour after he said it.

At a later point in the class, the subject of Kelo came up. I argued as I have all along , (a position which now Chief Justice John Roberts agrees), that the Supreme Court in Kelo strictly read the Constitution and applied the Fifth Amendment by saying these decisions are Political decisions and to be resolved locally. Despite the rhetoric of right wing spit radio, the Majority in Kelo did not legislate from the Bench and avoided an ends-justify-the-means outcome. I was speaking from the perspective of someone who has represented folks in eminent domain and other property rights and zoning cases, and I have learned well from these experiences, that all deference is given to the government body. Any hope a property owner has is through the political process.

What makes Kelo so wrong offensive to the general public is the standard of review applied. Local government bodies that make stupid decisions like that in Kelo, have always had their government power respected provided they followed due process standards. Boston or Bernhard’s Bay; local government is always given the same deference. Unless the government action directly impacts a “protected right” or impacts a “protected class”, Courts are generally loathe to intervene. This is the true doctrine of Separation of Powers. Governments are local laboratories and people are entitled to make their own rules on how they wish to live together. So long as basic minimum protections are respected, what your local government does is tested by the Courts on whether the decision was procedurally properly reached. This is called the “rationally related to a legitimate interest” test. The only real hurdle the government must overcome is that the action not be “arbitrary and capricious”. Hold a hearing and you have met that burden; even if you did not listen to the testimony before you.

A challenge to those who would oppose this change in the rules that they should bring a First Amendment claim is both unfair and meaningless. Despite the First Amendment’s absolute prohibition (Congress shall make NO law), there are three types of “speech” recognized by law and each is tested by a different standard. The highest and most protected of speech is political speech and any government action that impacts this highest type of speech must undergo very intense and strict legal scrutinizing about both the means and ends taken. The next type of speech is the intermediate level of speech; such as fair comment, defamation. Here, the bar is lowered somewhat because this general type of discourse can be limited but there has to be a real good reason. Wrongly call someone a pedophile and see how fast government interferes with your freedom to speak. Test out your free speech rights by verbally threatening the President and you will experience first hand how far government can stifle your freedom.

Among the lowest and least protected forms of protected speech is that of commercial speech. Here, government’s power to regulate and control advertising are great. It is recognized that you have the right to engage in commercial speech, but government has the right to regulate and control that both content and manner of speech. So long as the ends are deemed “legitimate”, the means will be respected by the Courts as long as procedure was followed … even if the idea is a bad one, an oppressive one, an unfair one, or an obnoxious one. This is the same standard that was applied in Kelo.

Consequently, absent something truly out of line, there is not going to be a viable First Amendment challenge available once these new lawyer advertising rules are put in place. With the input coming from a very small niche in the market … chasing an ideal that is as traditional (read: ‘old’) as the American farmer … and one probably just as unreal as it is romantic … and with no real recourse to challenge after the fact … and even though these rules won’t affect my life personally … it seems to me, with all due respect, that the process being employed to enact the rules is unfair. To this form of procedural unfairness, I strongly object.

Personally, I would let these idiots who dance around on television like clowns do so. Take it from me, if you sell yourself as a clown, clowns are who you pick up as clients. It is not good business but it does pay the bills. At times, it may be the only source of revenue to a young and hungry attorney. Unfortunately, there is a niche for this type of lawyer … not in the court rooms, but on the streets. People want to hire “those types” of lawyers because in their minds, sometimes Superman wears a suit and carries a briefcase.

The general public may not be skilled on the law but they are also not idiots. They seem to be able to buy automobiles and houses and engage in commerce and make decisions on complex issues all by themselves. How far will we take this ‘political correctness’ movement and how much will government feel it has the right to control what the public sees and how it sees it? Paternalism manifesting as censorship runs afoul of freedom and the very rights our profession holds dear.

I respect the Courts and the intentions of the Chief Justices. I believe their motives are honorable. It just seems that the way this matter has been handled is patently unfair.