Humorous Lawyer Ads: Cuomo Is Not Amused

Lawyers who advertise in the state of New York should not be funny. Or creative. Or gimmicky. Or have a slogan.

Attorney General Andrew Cuomo filed a brief yesterday saying just that, appealing a July decision by a federal district judge's who held that the new restrictions on lawyer ads violate First Amendment free speech rights and issued a permanent injunction against them.

The new rules, which debuted February 1, sought to forbid, among other things, client testimonials, monikers or nicknames implying the ability to get a result or attention-getting techniques unrelated to attorney competence or the fictional portrayal of a judge.

Public Citizen won the case on behalf of Alexander & Catalano, a Syracuse personal injury firm that bills itself as "The Heavy Hitters" and uses an aggressive advertising campaign, one that offended the sensibilities of some upstate judges who are charged with setting the state's rules for lawyer advertising.

The attorney general's brief describes the Alexander & Catalano advertising campaign as "frequently embellished with exaggerated images of the firm's attorneys as giants towering over local buildings, running to assist clients so fast that they appear as a blur, and counseling space aliens on insurance claims."

Clearly not as funny or deft as Geico's gecko. But it's a shot. Some of us might like to see the Skaddens in our midst lighten up a bit, and try this sort of thing. Not Cuomo: The brief asserts that the U.S. Supreme Court, which first green-lighted lawyer ads as protected commercial speech in 1977, is no fan of humor.

"It has never held that puffery, dramatizations, unverifiable statements of opinion, slogans, or promises, absurd portrayals, extreme use of humor, appeals to emotions, fears or prejudices, special effects, nicknames or other techniques in attorney advertising unrelated to rational decisions about selection of counsel are protected commercial speech," the attorney general said in his brief.

The First Amendment protection, according to Cuomo, extends only to "truthful, factual, nonmisleading information relevant to the attorney's services."

Gregory Beck of Public Citizen says the state should not be in the position to make these judgment calls. "Who is going to make the decision about what information is relevant or too funny?" says Beck. "Humor is not protected, in their opinion, by the First Amendment."

The Alexander firm is cross-appealing another part of the decision by U.S. District Judge Frederick Scullin, who upheld a restriction in the new rules that puts a moratorium on solicitations of accident victims for 30 days following the accident.

Meanwhile, the Skaddens of the world remain on the sidelines, quietly accepting the hassles of the new rules. Another requires any firm that practices in New York—which means just about every large firm in the country—to put an "Attorney Advertising" notice on their websites, with the disclaimer: "Prior results do not guarantee a similar outcome."

So far, no corporate firm has stepped forward to challenge it.

by Karen Donovan