Legal Marketing

2nd Circuit: Ban on Law Firm Nicknames Violates First Amendment

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A federal appeals court has struck down many of New York’s lawyer advertising restrictions on First Amendment grounds.

The New York City-based 2nd U.S. Circuit Court of Appeals issued the opinion (PDF) on Friday, the New York Law Journal reports. The court struck down bans on:

• Nicknames such as “heavy hitters” that suggest an ability to get results.

• Portrayals of judges.

• Attention-getting techniques unrelated to competence.

• Client testimonials about pending matters.

However, the panel upheld two other rules. One bars portrayals of fictitious names such as the Dream Team that are used to give the misleading impression that lawyers from differing firms belong to the same firm. The other imposes a 30-day moratorium on targeted solicitation following a specific incident.

The rules had been challenged by the consumer-rights group Public Citizen, the personal injury law firm Alexander & Catalano, and the law firm’s managing partner, James Alexander.

Alexander & Catalano refers to its lawyers as “heavy hitters” in its advertising. Before the restrictions, the firm’s commercials had often contained jingles and special effects, such as wisps of smoke and blue electrical currents surrounding the firm’s name. They also had comical scenes, showing lawyers running at breakneck speeds to help clients or counseling space aliens.

“It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client’s house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens,” the opinion said. “But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe—purely as a matter of ‘common sense’—that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics.”

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