New York Court Rules on Attorney “Specialist” Restrictions

Texas attorneys who claim they are “specialists” in advertisements and elsewhere are required to back up that statement by earning board certification from the Texas Board of Legal Specialization (TBLS) or becoming a member of an organization that has been accredited by the TBLS. The Texas Disciplinary Rules of Professional Conduct also require attorneys to include the names of certifying organizations in any ads where specialization is claimed. While some view the reporting requirement as burdensome for lawyers who’ve earned the right to call themselves specialists, the Texas rules are a breeze when compared to similar New York regulations, which recently were declared unconstitutional by a federal appeals court.

The March 5 ruling from the U.S. Court of Appeals for the Second Circuit follows an 11-year legal battle over the New York rules, which require attorneys to name certifying organizations in advertisements and firm letterhead. The main complaint with the New York rules was a requirement for attorneys to include a 40-word disclaimer in ads and letterhead stating that any listed certifying organizations are not affiliated with the government and that certification is not a requirement for practicing law or an indication of greater competence.

Although attorney J. Michael Hayes included the disclaimer in two billboard advertisements installed in 1999, the Buffalo, N.Y.-based lawyer found himself targeted by a state bar grievance committee complaint that the disclaimer was not “prominently made.” Hayes responded with a lawsuit filed in 2001. His claims were thrown out in a bench trial before he filed an appeal with the Second Circuit. The appeals court sided with Hayes after finding that the “prominently made” language was unconstitutionally vague and other language in the New York rule violated the First Amendment.

It is not clear whether this ruling will cause other states to review their policies regarding similar disclaimer requirements, but it does provide New York attorneys with more certainty. Hayes told reporters that he expects more New York lawyers will seek board certification now that they know they will be able to advertise that accomplishment without having to include the 40-word disclaimer on their letterhead and advertisements.

Posted: 4/5/2012 6:20:30 AM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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