Tag Archives: ABA Model Rule 7.4

Adventures in Lawyer Advertising: NY Rule on “Specialists” Found Unconstitutional

In the legal profession, the term “specialist” can be a loaded term. When attorneys refer to themselves as “specialists” in advertisements, they are subject to specific rules of professional conduct.

For instance, under ABA Model Rule 7.4(d)(1), a lawyer cannot state or imply that he or she is certified as a specialist in a particular field of law unless that certifying organization has been approved by an appropriate state authority or been accredited by the American Bar Association.

In New York, however, the state rule of professional conduct is even more demanding than ABA Model Rule. Under New York’s version of Rule 7.4, an attorney advertising as a “specialist” must put out a lengthy disclaimer that is “prominently made”:

[1] The [name of the private certifying organization] is not affiliated with any governmental authority[,] [2] Certification is not a requirement for the practice of law in the State of New York and [3] does not necessarily indicate greater competence than other attorneys experienced in this field of law.

The Wall Street Journal reports that the Second Circuit recently held that this New York rule is unconstitutional for violating an attorney’s freedom of speech and for being unconstitutionally vague.

The ruling results from a case in which the New York Bar Association instituted a grievance proceeding against Buffalo lawyer J. Michael Hayes, who is certified by the ABA-approved National Board of Trial Advocacy. In 1999, Hayes placed ads on two billboards identifying himself as a specialist. The billboard included the lengthy disclaimer in six-inch letters, which were one inch bigger than what the federal government requires for cigarette warnings on comparable billboards. Even so, the grievance committee questioned Hayes whether the six-inch letters complied with the “prominently made” requirement.

In 2001, Hayes filed a lawsuit in federal court alleging that New York’s Rule 7.4 was unconstitutional. The case proceeded to a bench trial in which a federal judge ruled against the attorney. Hayes later appealed the District Court’s ruling to the Second Circuit.

The Second Circuit ruled that part 1 of the Rule 7.4 disclaimer was constitutional, but parts two and three violated Hayes’ First Amendment free speech rights. In addition, the court held that the “prominently made” requirement was unconstitutionally vague in the manner that it was applied to Hayes. The court explained that constituted “prominently made” was neither clear to the New York Bar enforcers nor to Hayes as a lawyer of ordinary skill and intelligence attempting to comply with it. Even more, the court noted that the New York Bar explicitly refused to advise lawyers as to whether specific sizes of fonts, colors, or placements would qualify as “prominently made” in advertising situations.