## Facts

- New York’s attorney advertising rule allowed lawyers to state they were certified specialists only if the certifier was ABA-approved, the certifier was identified, and a three-part disclaimer was included.
- J. Michael Hayes, a New York attorney, was certified in civil trial advocacy by the National Board of Trial Advocacy (NBTA), an ABA-approved organization.
- Hayes advertised his NBTA certification on billboards and other media.
- The Attorney Grievance Committee asserted Hayes’s billboard lacked a sufficiently “prominent” disclaimer and indicated the disclaimer would also be required on law firm letterhead if certification were stated there.
- The Committee warned it would commence disciplinary proceedings if Hayes did not comply; Hayes said he would comply and the investigation was closed.
- Hayes sued, challenging the disclaimer requirement as unconstitutional compelled speech and arguing the rule and its enforcement were unconstitutionally vague.

## Issues

1. Whether New York’s mandated three-part disclaimer for statements of attorney certification violated the First Amendment as applied to Hayes’s commercial speech.
2. Whether the rule was void for vagueness as applied because it failed to give fair notice and allowed arbitrary enforcement, including through an undefined “prominent” requirement.

## Decision

- The Second Circuit reversed the district court and remanded with instructions to enter judgment for Hayes.
- The court held that enforcing two components of the three-part disclaimer against Hayes violated the First Amendment.
- The court also held the rule was unconstitutionally vague as applied to Hayes because it lacked standards governing when and how the disclaimer had to appear.

## Legal Principles

- Attorney advertising is commercial speech entitled to First Amendment protection; compelled disclosures are permissible only within constitutional limits.
- Under *Zauderer*, the state may require disclosure of purely factual and uncontroversial information reasonably related to preventing consumer deception, and the requirement must not be unjustified or unduly burdensome.
- A compelled disclaimer that is evaluative or normative, or that forces a speaker to disparage the value of truthful certification, exceeds what *Zauderer* permits.
- Due process requires disciplinary rules to provide fair notice and meaningful enforcement standards; undefined requirements (such as that a disclaimer be “prominent,” without criteria for size, placement, or media-specific application) may be void for vagueness as applied where they invite ad hoc enforcement.

## Conclusion

The Second Circuit ruled that New York could not compel Hayes to include two of the mandated certification-disclaimer statements in his advertising and that the rule’s undefined prominence and application requirements were impermissibly vague as applied, requiring judgment for Hayes.


Hayes v. N.Y. Att’y Grievance Comm. of the Eighth Jud. Dist., 672 F.3d 158 (2d Cir. 2012)