Lawyer advertising developments in 2010 focused on the constitutionality of restrictions on lawyer advertising under the First Amendment. In three significant decisions, the Second, Fifth, and Eleventh Circuits upheld some, but struck down many other, regulations on attorney advertising. Overall, the First Amendment remains alive and well in the realm of lawyer advertising, and attempts to regulate lawyer commercial speech remain something like “pushing on a balloon.” The acceptance of a few regulations is undermined by the rejection of many others. With three federal courts of appeal weighing in on the issue in a single year, one begins to a smell a writ grant from the Supremes. Could this be the year?
The three key constitutional decisions from 2010 include:
Public Citizen, Inc. v. La. Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011): The Fifth Circuit analyzed the constitutionality of several recent amendments to Louisiana’s Rules of Professional Conduct regulating lawyer advertising. Specifically, plaintiffs challenged six subparts of Rule 7.2(c), regulating the content of advertisements and unsolicited written communications regarding a lawyer’s services. The court evaluated each regulation and upheld some, but not all, of the new changes.
Harrell v. Fla. Bar, 608 F.3d 1241 (11th Cir. 2010): In an action by Florida attorneys asserting First and Fourteenth Amendment challenges to nine rules regulating lawyer advertising in Florida, the Eleventh Circuit first decided several issues of justiciability and then found only one advertising regulation to be in compliance with the First Amendment.
Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010): A New York lawyer challenged several recent amendments to New York’s rules governing attorney advertising. The Second Circuit found the majority of the changes to be unconstitutional as the state failed to present evidence that advertising actually harmed members of the public or that the suggested changes would remediate any potential harm. The court did, however, uphold a 30-day moratorium on targeted communications to potential clients after a personal injury or wrongful death event.