By Beck, Greg
Strategies: The Journal of Legal Marketing , Vol. 12, No. 6
In the movie Elf, Will Farrell plays Buddy, a man raised by elves at the North Pole who comes to New York as an adult in search of his biological father. After 30 years in Santa's Workshop, Buddy arrives in Manhattan wide-eyed and clueless, ill-equipped to understand the complexities of the modern world. Passing a diner that claims the "World's Best Cup of Coffee," he bursts inside, shouting: "You did it! Congratulations! World's best cup of coffee! Great job, everybody! It's great to be here."
The scene was presumably not funny to lawyer regulators in new York, who claimed that the potential for consumer confusion over "best lawyer" advertisements was on their minds when, in 2006, they enacted regulations clamping down on what they described as "inherently misleading" lawyer advertising in the state. The amendments to New York's Code of Professional Responsibility prohibited lawyers from using trade names and slogans that imply an ability to get results--which would rule out "World's Best Lawyer"--as well as client testimonials, depictions of judges and "techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel."
Noting the absence of evidence that any consumer has ever actually been misled by any of these devices, the U.S. Court of Appeals for the Second Circuit in March held the rules to be unconstitutional restrictions on speech in Alexander v. Cahill, no. 598 F.3d 79 (2d Cir. 2010).
The case was brought by the consumer group Public Citizen and Alexander & Catalano, a Syracuse firm whose tagline--"the Heavy Hitters"--ran afoul of the anti-slogan rule. Alexander & Catalano's business depends on advertising that many lawyers would describe as silly or cheesy, including ads depicting the lawyers as giants towering above local buildings, running to a client's house so fast they appear as blurs, jumping onto rooftops, and consulting with space aliens.
The state argued in the district court that such techniques are false, and therefore, they fall outside the First Amendment's protection. "Irrespective of whether Plaintiffs intend their commercials to be humorous," the state's lawyers wrote, "it cannot be denied that there is little likelihood that they were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style." the district court, rejecting this argument, permanently enjoined enforcement of the rules.
On appeal, the state took a subtler but no less sweeping position, arguing that the First Amendment protects only statements of fact that are objectively relevant to a consumer's choice of lawyer. …