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Thoughtful observers must have been surprised on July 24th, when Kathryn Grant Madigan, the new President of the New York State Bar Association (the nation’s largest voluntary bar group, with 72,000 members) issued a press release saying “we are in agreement with the Court’s decision” in Alexander v. Cahill. At her NYSBA President’s Blog, Madigan confirmed her concurrence with Judge Scullin’s Alexander opinion, saying it “validated the measured and sensible approach of the [NYSBA Advertising] Task Force.” See “Striking a Balance on Lawyer Advertising” (July 26, 2007). Like other Bar leaders (see ABAJournal and NYLJ), she also pointed out that the invalid provisions regulating the content of ads were not Task Force proposals, but had been added by the Presiding Justices.

Alexander is the federal district court case that struck down numerous sections of the State’s new attorney advertising rules as unconstitutional restrictions on non-deceptive forms of commercial speech (see our prior post). The Alexander court enjoined enforcement of provisions that would “prohibit attorney advertisements from containing endorsements and testimonials about matters still pending, portrayals of judges, techniques to obtain attention that lack relevance to selecting counsel, portrayals of attorneys with characteristics unrelated to legal competence, and use of a nickname, moniker, motto, or trade name that implies an ability to obtain results in a matter.” It also struck down a ban on pop-up and pop-under internet ads, and held that the rules would not be construed to apply to non-commercial speech (by not-for-profit attorneys).

In Alexander, Senior Federal District Judge Frederick J. Scullin, Jr., specifically rejected New York’s bald assertion that it “could ban attorney advertising that was ‘irrelevant, unverifiable, [and] non-informational’” without reference to the Supreme Court’s Central Hudson test for the regulation of commercial speech.

The New York Bar Association had played a major role shaping and promoting the new advertising regulations, which went into effect on Feb. 1, 2007, after adoption by the State judiciary. In fact, the group’s leaders have been at war with lawyer advertising for quite a few years. See, e.g., our posting “New York Bar disses lawyer advertising” (Nov. 18, 2005), where we quoted from an Association “public education” radio spot and noted that the NYSBA would like consumers to ignore lawyer advertising.

In early 2005, A. Vincent Buzard had pushed a draconian scheme of advertising oversight and censorship through the Monroe County [Rochester] Bar Association (see prior post); the MCBA plan was aborted very quickly, when the State Bar Grievance Committee complained that the enforcement process interfered with official disciplinary procedures. However, immediately upon elevation as NYSBA’s 108th President in June 2005, Buzard appointed an advertising Committee/Task Force, hoping that it would improve the “public perception” of lawyers by helping to eliminate ads that he deemed to be inappropriate and unprofessional, and to educate the public as to which lawyer ads were “ethical” and “appropriate.” According to the Task Force’s final Report, it was established “as a result of increasing concern over lawyer advertising as contributing to the lack of public understanding about lawyer marketing,” with the “expressed concern that the State Bar… has a duty to protect the public and advance the legitimate interests of our profession concerning the subject of lawyer advertising.” Buzard’s inaugural press release explains that the advertising Committee was expected to achieve its goals by developing “rules, standards and mechanisms aimed at limiting lawyer advertising to the fullest extent permitted, within the limitations of the First Amendment.”

The Task Force’s 129-page Report was released in November 2005 and was to play a big role in shaping the controversial new advertising rules for New York. The Presiding Justices initially adopted the basic approach and most of the proposals of the Task Force — including its surprising declaration that websites and weblogs by lawyers are advertising, and the shocking proposal that the sponsor of a website or weblog must file every material change in the website with a central authority. The resulting uproar in the legal blogisphere and media garnered far more attention and opposition for the proposed new rules than had been originally anticipated, necessitating an extended comment period and extensive re-writing of the rules.

When the final rules were announced by the New York State Unified Court System, the Bar Association took credit for the more balanced (less rabid) revisions. (press release, Jan. 4, 2007) The then-current Bar Asociation president, Mark H. Alcott, boasted that the final provisions ”reflect extensive consultations that the Association had with the Presiding Justices after the initial proposals were issued last fall.” There was none of the distancing that we now see by President Madigan in the wake of Alexander v. Cahill — no complaints about direct regulation of content and no suggestion that Task Force over-reaching had led the Justices astray.

If we want to discern the current attitude of the New York State Bar Association toward lawyer advertising we need to look a bit closer at Madigan’s reaction to Alexander v. Cahill and then at what its Task Force actually did and said. In her President’s Blog piece on July 26, Madigan made the following relevant points:

1. “[T]he decision comports with the Task Force’s effort to strike a balance between an attorney’s right to advertise his or her services and protecting the public from advertising that is false and/or misleading.”
2. “I believe that most of us would agree that attorney advertising should be done in a manner that is dignified and balanced, enabling the consumer to make informed decisions about securing quality legal representation.”
3. “Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster.”
4. “Notably, this decision referenced the expert analysis provided by our Task Force in a number of respects and we are indebted to the Task Force for their dedication and commitment to this important issue.”

Recall that the Alexander decision strongly rejected regulations aimed at ‘irrelevant, unverifiable, [and] non-informational’” ads and insisted that the courts and bar respect free speech rights despite their finding some presentations distasteful. In that context, it is not surprising that Bar President Madigan would try to downplay the Association’s role in shaping the provisions that were struck down in Alexander, and to avoid embarrassing prior Bar leaders. It is surprising, however, that she would claim to agree with the Alexander decision, while nonetheless 1) demonstrating the continuing wish that the profession could ban advertising that “is not false or misleading,” in order to promote “dignified and balanced” advertising; 2) stressing support for the 2005 Task Force Report; and 3) praising the “expert analysis” of the Task Force which — as prominent first amendment lawyer Floyd Abrams has correctly pointed out — appears to provide us with “almost no empiric basis for the adoption of almost any of these rules.” [Below the fold in this post, I have repeated my discussion in Nov. 2005 of the weak proof of actual consumer harm in the Task Force Report]

This seeming inconsistency stems from the very nature of the 2005 Task Force Report — which is a prime example of what can happen when a policy statement is written by a large committee and “overlawyered”: It attempts to use wordplay to appease many interests and appear reasonable, without abandoning its mission and preordained conclusions. Clearly, some Task Force members had a more sensitive approach to Free Speech and antitrust issues, and the fear of defamation suits, than did Pres. Buzard. Thus, for example, the Report states (at 2):

“The Committee was also cognizant that further content-based restrictions have the potential to run afoul of constitutional rights and we agreed at the outset to deal in practical solutions (i.e., generally strengthening existing disclaimers and requiring further disclosures) without adding content-based restrictions.”

The Report also makes it clear that the fear of antitrust liability (as well as meritless antitrust claims and defamation charges by targeted lawyers) kept the members from recommending any active enforcement role by the Bar Association and any statement of principles as to appropriate advertising that would be deemed binding on Association members. And yet, the Task Force would not abandon its primary mission — “improving” lawyer advertising in the hope of improving the public perception of lawyers. It therefore decided, rather than directly proposing rules embodying its notion of “dignified and balanced” advertising, to adopt “Guidelines” and use them to educate the bar and the public about what kinds of ads were “appropriate or inappropriate.” As a result the Task Force made the following recommendations [at 11]:

1. “Adopt the recommendation that the Monroe County Bar Association guidelines regarding advertising as the official advertising guidelines and policy of the State Bar.”
2. “Adopt the recommendation that the State Bar use the guidelines for public dissemination in a State Bar media program which will be designed to serve as a model for educating lawyers including but not limited to dissemination at the time of admission to the Bar.”
3. …. “develop the proposed booklet for educating consumers about advertising.”

Once the above recommendations were approved by the NYSBA’s full House of Delegates, the two-page MCBA Advertising Guidelines became “the official advertising guidelines and policy of the State Bar.” [see our description of the MCBA rules; also here] Therefore, the official position of the NYSBA is that lawyer advertising, to be fully ethical, must not only be “true, accurate and clear,” but also “fair,” “rational” and “relevant to the thoughtful selection of counsel.” [Below the fold, I have reprinted the MCBA /NYSBA definitions of “fair,” “rational” and “relevant”.]

To avoid antitrust problems, the Task Force reluctantly gave up the Monroe County enforcement scheme, but it whole-heartedly joined its Dignity Posse in calling for lawyers and the public to reject ad content that was “irrational” or not “relevant to the thoughtful selection of counsel,” or that might offend a segment of the community, or “foster disrespect for . . . the legal profession.” Indeed, despite having apparent expertise with the concept of consumer deception, and in matters of professional responsibility and legal ethics, the Task Force declared [at 74]:

• “[V]irtually all, if not all of the guidelines, solely restrict misleading or deceptive advertising.” [The only possible exception acknowledged by the Task Force was the 15-day moratorium on advertising to disaster victims.]
• “The Guidelines themselves were not intended to break new ground; they are a plain language, straightforward articulation of the Code of Professional Responsibility provisions on advertising.”

Adoption of the MCBA Guidelines by the Task Force and the Bar Association helps explain why NYSBA did not complain earlier this year when the Unified Court System unveiled content-based advertising rules, along with procedures that could significantly chill much advertising in print, broadcast or internet form. (They were hoping that the courts could achieve what a voluntary bar association could not.) It may also explain why the Presiding Justices thought they had a legal basis for regulating ‘irrelevant, unverifiable, [and] non-informational’” ads as false or misleading.

It seems to this observer (who spent much of his decade at the Federal Trade Commission looking at antitrust and consumer protection issues rising from advertising restrictions imposed by professional associations) that NYSBA cannot both agree with the Alexander decision and actively advocate the implementation of the MCBA advertising guidelines. After reading Kathryn Madigan’s reaction to the Alexander decision, I left a comment at ABAJournal website:

If Bar president Madigan really means “we went too far and our initial proposals were unconstitutional, unnecessary, and insulting to the intelligence of the public and the integrity of the profession,” she should say so, rather than merely trying to cover the Association’s rear end.

In the wake of the decision in Alexander, and with her embrace of the 2005 Advertising Task Force Report, we need to know the position of Pres. Madigan and her Bar Association on lawyer advertising and free speech. Do they still equate “irrelevant” with deceptive? Do they plan to step up their misleading “educational” campaign to convince the public and lawyers that there is something unethical or inappropriate about advertising that is truthful but somehow deemed to be insufficiently dignified or relevant? Or, do they trust the intelligence of consumers, the integrity of lawyers, and the benefits of free speech and vigorous competition sufficiently to disband their Dignity Posse and turn their energy to efforts that will help improve the quality and value of the services lawyers provide?

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update (Aug. 14, 2007; 9 AM): Right after I wrote this piece on Saturday afternoon, Aug. 11, I left a comment at Pres. Madigan’s weblog, saying that I had written about this issue and that I hope she would respond. So far, the Comment has not been approved and does not appear at the site. No response has been posted at the weblog nor received by me answering the issues raised here. update (Aug. 15, 2007; 9 AM): My comment is now up at the NYSBA President’s Blog. Now, I hope we’ll get a thoughtful, frank reply. No spin needed.

update (Aug. 20, 2007):  As promised, Bar President Madigan has responded at her weblog to this posting.  See “Lawyer Advertising II” (Aug. 20, 2007).  Naturally, f/k/a replies in “Madigan responds on NYSBA advertising position.”

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Here is part of what we said in our posting, “more Dignity Police: New York Bar disses lawyer advertising” (Nov. 18, 2005), about the weak evidence of deceptive advertising in the NYSBA 2005 Advertising Task Force Report:

[T]he Task Force proposes major restrictions on advertising in the name of consumer protection and the avoidance of deception, with absolutely no evidence of consumer harm. The Report states that “although a very small minority of the ads could be categorized as false or deceptive on their face,” about a third of the 119 ads reviewed by Task Force members were found to be deceptive. Given the inability to verify their findings, I am quite dubious of the significance of this claim. One reason is the admission in the Report that the “most widespread impropriety” was the failure to give either the firm’s name, address, or telephone numbers in the ads. In addition, the Task Force clearly includes a failure to inform the audience that an ad is “staged” or uses actors in the deceptive category. Yet another reason is the acknowledgment in the Report that numerous members of the Task Force wanted to remove the materiality requirement for a finding of deception.

The Monroe County Bar Association guidelines, which have been adopted as the official advertising guidelines and policy of the New York State Bar Association, include the following requirements for “appropriate” advertising. In addition to being true, accurate, clear and jurisdictionally proper, advertising should be:

Fair: Advertising that recreates, dramatizes, or simulates situations or persons should fairly represent the underlying facts and properly disclose that they have been staged.

Relevant: All information should be relevant to the thoughtful selection of counsel, and devices, such as puffery, that are likely to hinder this process should be minimized.

Rational: Pictures and other stylistic elements should be used to reinforce rational considerations, and should not unduly frighten,inflame, or otherwise manipulate viewers into ignoring rational considerations. Lawyer advertising should not be likely to shock or offend a substantial segment of the community or to foster disrespect for the law, the legal profession, or the judicial system.

In our earlier post, we stated that the rationality requirement is most worrisome: There is simply too much leeway here for meddlesome interference and deterrence, with little more at stake than the profession’s Image (which we believe is actually disserved by such dignity campaigns). The Association’s desire to help the public differentiate between “appropriate and inappropriate advertising” seems far too closely linked in the Bar’s collective mind to notions of professional dignity and image. Thus, the Task Force also stated:

“Public perceptions of the legal profession can be negatively impacted by certain types of lawyer advertising. Educating the public on how best to select a lawyer may have an ameliorating effect on this disturbing trend.”