Thanks to David McGowan for pointing out the lawsuit that Public Citizen and a New York law firm recently filed that challenges various aspects of the advertising rules that New York has just adopted.
The complaint, which you can find here, contains a number of claims. I was especially interested, however, in the following allegation, because I have written a little bit about Florida Bar v. Went For It, 515 U.S. 618 (1985), and teach the case nearly every semester:
Sections 1200.8(g) and 1200.41-a prohibit advertisements and solicitations regarding incidents involving potential claims for personal injury or wrongful death for a thirty day period after the incident. These rules prohibit not only in-person, telephone, and direct mail solicitations, but also advertisements on radio, television, and the Internet that do not intrude on the privacy of consumers. As a result, New York members of Public Citizen will be blocked from receiving information about their rights relating to the incident, even if they actively seek this information on the Internet.
The complaint also alleges that “[n]one of the amendments is supported by studies, factual findings, or other evidence demonstrating a public need or a state interest in adopting the amendments. The amendments appear to be motivated solely by a general distaste for certain forms of lawyer advertising and by discrimination against a certain class of attorneys who assist injured consumers.”
Although these allegations did not appear near each other in the complaint, they are important when taken together. In Florida Bar v. Went for It, the Court seemed to put a great deal of emphasis on the Florida Bar’s empirical evidence that the 30 day blackout rule furthered the important government interest of improving the public’s image of the bar. As many people have pointed out, the empirical evidence in that case was thin and has been contradicted by more careful studies. (See pages 1007 and 1008 of this article, where I summarize some of the criticisms.) Nevertheless, the Court seemed to think that the empirical support was important, so if New York hasn’t offered any empirical evidence in support of its 30 day restriction, the New York rule might be distinguishable from the Rule that the Court upheld in Went for It.
The New York Rule is also potentially distinguishable for another reason. As the complaint notes, “These rules prohibit not only in-person, telephone, and direct mail solicitations, but also advertisements on radio, television, and the Internet that do not intrude on the privacy of consumers.” If true, the New York rule seems far more restrictive than the Rule at issue in Went for It, which prohibited “a written communication to a prospective client for the purpose of obtaining professional employment if . . . the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication.”
The only problem with the allegation is that it is not entirely clear (at least upon a rather cursory review of the Rules on my part) that the New York provision is as restrictive as the complaint suggests. 1200.41-a does limit “unsolicited communications” in this context, but the meaning of “unsolicited communications” is not obvious. In contrast, 1200.8(g) limits “solicitations” within the 30 day window, and 1200.8(b) defines “solicitations” in such a way as to make it very similar to the Rule at issue in the Florida case. If 1200.41-a were interpreted more broadly than 1200.8(g), as the plain language of 1200.41-a suggests that it could be, the provision would indeed be quite a bit more problematic than the Florida Rule was. It’s not obvious to me, though, why 1200.41 should have a broader reach than 1200.8(g). Is this just loose drafting? Or is there a reason to believe that 1200.41 was intended to apply to a broader range of communications? Does anybody know?
Either way, I am happy to see another Went For It-type challenge. In my view, Went For It ranks as among the Court’s worst decisions in the area of legal ethics, so here’s my advice to would-be challengers of 30 day blackout rules for written solicitations: Go for it!