The 2d Circuit has affirmed the district court decision in Alexander v. Cahill, holding most of the content based restrictions on lawyer advertising unconstitutional. I wasn’t aware of the decision being issued yesterday until I received a call from a reporter asking for comment. I should have read Turk’s post at New York Personal Injury Law Blog sooner, and I would have known.
When I learned that the circuit affirmed, I applauded the decision, causing great confusion. How could I, I was asked, an opponent of lawyer advertising, marketing schemes and self-promotion, agree with the decision holding that lawyers should not be denied the first amendment right to free speech granted everyone else? I explained.
The reporter, like most people, assumed that if there is a wrong happening somewhere, there must be a corresponding law or regulation prohibiting it and a remedy to punish the wrongdoing. It took a number of tries before I could break through this mindset. While I’m not at all sure I convinced her, at least I believe she left understanding that as much as I believe that flagrant marketing is distasteful and unprofessional, bad for the profession and part of our race for the bottom, that doesn’t mean that I support legal restrictions or prohibitions. The former is bad. The latter is worse,
In the case before the 2d Circuit, the upstate law firm of Alexander & Catalano was big into advertising, with such strokes of brilliance as advising space aliens and appearing as giants, towering over the city as they ran to a client’s house. Goofy, tacky stuff, but hardly the sort that could be taken as anything but goofy and tacky. No sane client could be deceived into believing that they really were the law firm preferred by space aliens. And if they were deceived, well, then they could have the client, if you get the picture.
If these particularly commercials were banned, it would be hard to lose much sleep. But the rules to prohibit them swept with a broad brush. From the Turk :
An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter.
No matter how one feels about lawyer advertising, these restrictions would impact a far wider swathe than space aliens and giant lawyers, and render speech that should certainly fall within the protections of the first amendment unethical. As much as I would like to see these marketing efforts end, not at the expense of free speech. Notably, however, the circuit left intact the general prohibitions on false and misleading advertising. Not that they were really needed, since such restrictions have always been imposed on lawyers, as well they should be.
The missing link is lawyers ourselves. I can’t envision any set of restrictions on lawyer marketing that won’t, coincidentally or not, be so overbroad as to include speech that lies outside and is entitled to protection, whether full or limited as commercial speech. I don’t want my free speech restricted because your tacky and disgraceful marketing effort makes people’s stomachs turn.
The Circuit has given lawyers a second chance. Here’s the deal. Stop the race to the bottom, the next effort to be even more outrageous, more ridiculous, more unprofessional and undignified, than anyone before you. Stop trying to find some new way, some brighter light, some trickier claim, to make you stand out more than the next guy. Stop it, and chances are very good that the state will not seek to recreate restrictions on lawyer free speech that will chill the rights of the rest of us.
But if you continue to pursue the most absurd, outrageous, disgraceful means of promoting yourself, you’re begging for the next round of restrictions. Testing the waters to see how bad you can get before they come after you? You will bring restrictions down on all of us. That’s my speech at risk when you screw around. I’m not prepared to give it up so you can pretend that your 12 minutes of legal experience means that you’ve won bazillions of dollars for llamas and judges love you so much that they offer to let you wear their robe. And no, you are not known as “The Hammer” or “Bullet-Proof” to anyone. If you want to call yourself “Nimrod”, we might have agreement.
Of course, I’m being naive. If there’s a buck to be made somewhere, there’s a lawyer willing to put on pink hotpants. Which is why people like Turk and Carolyn Elefant will continue to out your garbage in the hope that it will dissuade the authorities from imposing new restrictions, perhaps even restrictions sufficiently well-drafted to pass constitutional muster, and leave it to lawyers to clean up their own mess.
We’ve got a second chance. Don’t screw it up for the rest of us.