## Facts

- New York’s Appellate Division adopted comprehensive attorney advertising and solicitation amendments effective February 1, 2007.
- The rules imposed several content-based restrictions on attorney advertisements and a 30-day moratorium on certain targeted solicitations following a specific incident.
- James Alexander and his personal-injury firm, Alexander & Catalano, used attention-grabbing television and print ads featuring dramatizations, humor, special effects, and slogans (e.g., “heavy hitters”).
- Plaintiffs alleged the new rules restricted truthful, non-misleading commercial speech and were adopted at least in part in response to their advertising style.
- Plaintiffs challenged prohibitions on: (a) client testimonials relating to pending matters, (b) portrayals of judges, (c) attention-getting techniques deemed irrelevant to attorney competence, (d) nicknames/monikers/mottos or trade names implying results, and (e) portrayals of fictitious law firms; and challenged the 30-day moratorium on targeted solicitations to accident victims or families.
- The action was brought under 42 U.S.C. § 1983 against disciplinary officials responsible for promulgation and enforcement, sued in their official capacities.
- The district court granted summary judgment to plaintiffs on most content-based restrictions but upheld the 30-day moratorium and certain other provisions; both sides cross-appealed.

## Issues

1. Whether New York’s content-based restrictions on attorney advertising impermissibly restricted protected commercial speech under the First Amendment.
2. Whether the 30-day moratorium on targeted solicitations following an accident or similar event violated the First Amendment.
3. Whether the State’s evidentiary showing and tailoring satisfied the Central Hudson test for commercial speech.

## Decision

- The Second Circuit affirmed in large part and reversed in part.
- It invalidated most challenged content-based advertising restrictions (including bans on testimonials relating to pending matters, portrayals of judges, attention-getting techniques unrelated to competence, and nicknames/slogans implying results).
- It upheld the prohibition on portrayals of fictitious law firms.
- It upheld the 30-day moratorium on targeted solicitations following specified incidents.

## Legal Principles

- Attorney advertising that is truthful and not misleading is protected commercial speech evaluated under Central Hudson: substantial governmental interest; regulation must directly advance that interest; and there must be a reasonable fit (not more extensive than necessary).
- The State must show more than speculation; it must demonstrate that the asserted harms are real and that the restriction will alleviate them to a material degree.
- Humor, dramatizations, and special effects are not inherently misleading in attorney advertising if the underlying message is accurate and not misleading; flat prohibitions require strong justification and tailoring.
- Broad prophylactic bans on non-misleading commercial speech are disfavored where less restrictive alternatives (e.g., disclaimers or case-by-case discipline of misleading ads) could address deception.
- Commercial speech that is inherently misleading (such as representing a fictitious law firm) may be prohibited because it receives no First Amendment protection.
- A short, incident-triggered moratorium on targeted solicitation to accident victims can be constitutional where it protects privacy and tranquility during a vulnerable period and leaves open ample channels for general advertising and later solicitation, consistent with Florida Bar v. Went For It, Inc.

## Conclusion

The Second Circuit held that New York could not broadly prohibit non-misleading attorney advertising content without evidence and adequate tailoring, but it could ban inherently misleading fictitious firm representations and impose a limited 30-day pause on targeted solicitations to recent accident victims.


Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010)