Inaction by Supreme Court justices leaves standing a ruling by a federal appeals court that a New York law went too far in restricting claims made by ads for lawyers.
Look! Up in the sky! It’s a bird. It’s a plane. It’s a … lawyer.
The US Supreme Court on Monday declined to take up the thorny issue of how far lawyers may go when seeking to attract clients through whimsical and gimmicky advertising.
The action lets stand a ruling by a federal appeals court invalidating a portion of New York’s rules of professional conduct mandating how law firms in the state are to behave while advertising for new clients.
The rules, adopted in 2006, had prohibited the use of nicknames, trade names, and marketing slogans that might imply an unproved ability to win cases.
The rules also barred use of marketing gimmicks and other attention-grabbing techniques that do not contain objective information about legal services.
After the new rules were adopted, the personal injury law firm, Alexander & Catalano, and the nonprofit group, Public Citizen, filed suit challenging key provisions on grounds that they were unconstitutional restrictions on commercial speech in violation of the First Amendment.
The law firm had spent significant money developing a slogan, “The Heavy Hitters” and a whimsical ad campaign designed to appeal to a less sophisticated clientele in need of legal advice. The ads aired without objection for years – until the new rules were adopted.
In one television commercial, James Alexander and his partner are portrayed as giants looming over local buildings. They are shown running so quickly to a client’s house that their images become blurs on the screen. They are able to leap onto roofs – presumably to battle injustice in high places. One segment even portrays them providing legal advice about an insurance claim to space aliens.
“The firm’s ads, although at times silly, were popular among the firm’s clients and posed no risk of deception or other harm to consumers,” wrote Gregory Beck, a lawyer with Public Citizen, in his brief urging the Supreme Court not to take up the case.