Opinion
01-CV-0907E(Sr)
September 17, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
J. Michael Hayes, Esq. commenced this action December 14, 2001 seeking declaratory and injunctive relief against the State of New York Attorney Grievance Committee of the Eighth Judicial District (the "Grievance Committee") and Nelson F. Zakia, Esq., in his capacity as Chairman of the Grievance Committee.
On April 22, 2002 the Grievance Committee was dismissed from this action, leaving Zakia as the sole defendant.
As part of his Complaint plaintiff seeks a declaration that Disciplinary Rule 2-105(c)(1), 22 N.Y.C.R.R. § 1200.10(c)(1) — which governs statements made by attorneys as to their specialization in a particular area of law — is both facially unconstitutional and unconstitutional as applied to his use of the terms "Board Certified by the National Board of Trial Advocacy ["NBTA"] as a Civil Trial Specialist" and "Board Certified Civil Trial Advocate" in his advertising. In addition, he seeks a permanent injunction enjoining defendant from enforcing the provisions of Rule 2-105(c)(1) against him. Plaintiff then moved on December 21, 2001 for a preliminary injunction seeking to enjoin defendant from compelling plaintiff's compliance with Rule 2-105(c)(1) pending the final decision of the plaintiff's underlying claim. This motion has thereafter been before this Court for disposition.
Plaintiff's letterhead simply states that he is a "Board Certified Civil Trial Advocate," without reference to the certifying organization. See Declaration of Michael J. Russo, Esq., in Opposition to Plaintiff's Motion for Preliminary Injunction, Ex. B.
Plaintiff, an attorney licensed to practice in the State of New York, was "awarded" Board Certification in Civil Trial Advocacy in 1995 from the NBTA, an organization accredited by the American Bar Association. Plaintiff thereafter began to refer to himself as a "Board Certified Civil Trial Specialist" in various advertisements. On August 6, 1996 the Grievance Committee wrote to plaintiff regarding his use of such characterization on his letterhead — Hayes Dec. 21, 2001 Aff. ¶ 52, Ex. F — and on November 19, 1996 wrote to him regarding his use of such term and "Call Us When Your Personal Injury Case Requires A Specialist" in his advertisement in the 1996-1997 Talking Phone Book, taking the position that the use of such terms was inconsistent with Rule 2-105(B), the predecessor of Rule 2-105(c)(1). Hayes Dec. 21, 2001 Aff. ¶ 55, Ex. H. In response to a request by the Grievance Committee, plaintiff agreed to include the name of the certifying organization — i.e., the NBTA — on his letterhead and in future telephone directory advertisements thereby resolving the dispute over his use of the above terms. Hayes Dec. 21, 2001 Aff. ¶¶ 52-58, Exs. H-J. Plaintiff thereafter referred to himself as a "Board Certified Civil Trial Specialist/National Board of Trial Advocacy." Hayes Dec. 21, 2001 Aff. ¶ 59.
Former Rule 2-105(B), in effect at the time, provided as follows: "A lawyer who is certified as a specialist in a particular area of law or law practice by the authority having jurisdiction under the laws of this state over the subject of specialization by lawyers may hold himself or herself out as a specialist, but only in accordance with the rules prescribed by that authority."
On June 30, 1999 Rule 2-105(c)(1) went into effect. Such rule states that "[a] lawyer may state that the lawyer has been recognized or certified as a specialist only as follows:
"A lawyer who is certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association may state the fact of certification if, in conjunction therewith, the certifying organization is identified and the following statement is prominently made: `The [name of the private certifying organization] is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law.'"
On November 17, 1999 the Grievance Committee wrote to plaintiff regarding his billboard near the westerly end of the Kensington Expressway. See Declaration of Vincent L. Scarsella, Esq., in Opposition to Plaintiff's Motion for Preliminary Injunction, Ex. 1. Such billboard referred to plaintiff as a "civil trial specialist" and included the required disclaimer; however, the Grievance Committee considered that the disclaimer was in such small print that it could not be read by passing motorists and therefore requested plaintiff's response regarding whether the disclaimer was prominently made as required by Rule 2-105(c)(1). On November 30, 1999 plaintiff responded to the Grievance Committee, stating that disclaimers on billboards which advertised tobacco products only had to be five inches high and, in an effort to comply with the "prominently made" requirement, he had directed that six-inch letters be used for the disclaimer, but that he was willing to work with the Grievance Committee to resolve the issue. Hayes Dec. 21, 2001 Aff. Ex. K. On December 14, 1999 the Grievance Committee wrote to plaintiff stating that it was closing the investigation concerning plaintiff's billboard, but suggested that he reconsider the size of his disclaimer and contact the Committee on Professional Ethics of the New York State Bar Association for an advisory opinion on that issue. Scarsella Decl. Ex. 3. On May 11, 2000 the Grievance Committee reopened its investigation of plaintiff's billboard advertising based upon another of his billboards situated on the "eastbound" lane of Route 5 as it leads toward Buffalo, the disclaimer on which the Grievance Committee believed to be unreadable by motorists passing at 55 mph. Scarsella Decl. Ex. 4. Plaintiff responded to the Grievance Committee May 17, 2000 stating that he had directed his advertiser to remove such billboard and that he had contracted to have new billboards made wherein the disclaimer was "very large, in bold black type and on a white background." Scarsella Decl. Ex. 5. The Grievance Committee responded May 19, 2000 stating that it was closing the investigation into that particular billboard due to his representation that such would be removed and that new billboards were being designed. Scarsella Decl. Ex. 6. However, the Grievance Committee also stated that it was opening another investigation — File #00.8210 — based on plaintiff's letterhead, wherein plaintiff identified himself as a "Board Certified Civil Trial Advocate National Board of Trial Advocacy" and did not include the required disclaimer. Ibid. Thereafter numerous letters were exchanged among the Grievance Committee, plaintiff and his attorneys, none of which made any progress towards resolving the dispute. The Grievance Committee stated to plaintiff in a June 25, 2001 letter that, if he "refuses to include the required disclaimer with the current designation on his letterhead, we will have no alternative but to request that he formally appear before the Committee with the recommendation of disciplinary action by way of a Letter of Admonition or formal proceedings in the Appellate Division." Scarsella Decl. Ex. 16. Plaintiff's response was requested by July 13, 2001, a deadline that was ultimately extended to August 3, 2001. Ibid. Plaintiff on November 2, 2001 initiated an action for declaratory relief against the Grievance Committee. However, on November 2, 2001 that action was dismissed by this Court on jurisdictional grounds. Plaintiff then advised the Grievance Committee, in a letter dated November 6, 2001, that the term "Certified Civil Trial Advocate" had been removed from his letterhead. Scarsella Decl. Ex. 17. Consequently, the Grievance Committee closed its file regarding plaintiff's letterhead. Scarsella Decl. Ex. 18. Plaintiff then commenced the instant action December 14, 2001. Currently, there are no actions by the Grievance Committee pending against plaintiff.
Barry Nelson Covert, Esq. and Michael S. Taheri, Esq.
Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District and Nelson F. Zakia, Esq., 01-CV-0545E(Sr).
A party seeking a preliminary injunction generally must establish that he "will suffer irreparable harm in the absence of an injunction and demonstrate either (1) `likelihood of success on the merits' or (2) `sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly' in the movant's favor." Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (quoting Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 779-780 (2d Cir. 1994)). However, when "the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme," he must show both irreparable harm and a likelihood of success on the merits. Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999) (quoting Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996)). In addition, "the moving party must make a `clear' or `substantial' showing of a likelihood of success where (1) the injunction sought `will alter, rather than maintain, the status quo' — i.e., is properly characterized as a `mandatory' rather than `prohibitory' injunction; or (2) the injunction sought `will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits.'" Jolly, 76 F.3d at 473 (quoting Tom Doherty Assocs. Inc. v. Saban Entertainment Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)).
Accordingly, inasmuch as plaintiff seeks to enjoin defendant, in his capacity as Chairman of the Grievance Committee, a governmental entity, from undertaking action in the public interest pursuant to Rule 2-105(c)(1), satisfaction of the more lenient "balance of hardships" standard is not enough to sustain his injunction request. The plaintiff must show irreparable harm in the absence of an injunction and a likelihood of success on the merits. Additionally, plaintiff has the higher burden of demonstrating a "clear" or "substantial" likelihood of succeeding on the merits inasmuch as he is asking for a mandatory injunction that would alter the status quo.
The relief sought by the plaintiff would at its broadest nullify the disclaimer requirement and at its narrowest prevent the Grievance Committee from enforcing the disclaimer provision of the Disciplinary Rules. The relief is therefore in the nature of mandatory injunctive relief rather than prohibitory because it would "change the positions of the parties as it existed prior to the grant." See Beal, 184 F.3d at 123 (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)).
Plaintiff's first claim is that Rule 2-105(c)(1) is unconstitutional, both facially and as applied to him, because it violates his freedom of expression as guaranteed to him under the First and Fourteenth Amendments. Such a claim necessarily merges his irreparable injury claim with his likelihood of success claim because the only way to determine whether he has suffered an irreparable injury is to determine whether his First Amendment rights have been violated. Thus, this Court need not dwell on the irreparable injury issue and will address whether plaintiff has demonstrated a "substantial" or "clear" likelihood of success on the merits.
Furthermore, this Court need not address whether plaintiff has suffered an irreparable injury due to the nature of his First Amendment claim. See Beal, 184 F.3d at 123 ("A statute that threatens freedom of expression to a significant degree by its nature gives rise to irreparable injury."); See also Bery, 97 F.3d at 693 ("Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction."); Tunick v. Safir, 228 F.3d 135, 139 (2d Cir. 2000) ("Violations of First Amendment rights are presumed irreparable.").
Lawyer advertising is commercial speech that is protected by the First Amendment. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) ("It is now well established that lawyer advertising is commercial speech and, as such, is accorded a measure of First Amendment protection."). Whether commercial speech may be validly restricted involves a four-part analysis. "First, for commercial speech to merit any First Amendment protection, it `must concern lawful activity and not be misleading.' Next, the government must assert a substantial interest to be achieved by the restriction. If both these conditions are met, the third and fourth parts of the test are `whether the regulation directly advances the governmental interest asserted' and whether the regulation `is not more extensive than is necessary to serve that interest.'" Anderson v. Treadwell, 294 F.3d 453, 460 (2d Cir. 2002) (quoting Central Hudson Gas Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 563-66 (1980)). Thus, in this case the Court must determine whether plaintiff's statement of certification is misleading and, if it is not, whether it is potentially misleading such that it creates a substantial State interest that justifies the disclaimer requirement of Rule 2-105(c)(1).
The Supreme Court, in Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91 (1990), addressed a similar issue when it decided whether an Illinois disciplinary rule, which prohibited an attorney from advertising his certification by the National Board of Trial Advocacy, violated the First Amendment. The Supreme Court of Illinois had publicly censured an attorney for advertising that he was a "Certified Civil Trial Specialist By the National Board of Trial Advocacy." The State Supreme Court had found this statement to violate Disciplinary Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility.
Specifically, Mr. Peel advertised the following on his stationery:
"Gary Peel
Certified Civil Trial Specialist
By the National Board of Trial Advocacy
Licensed: Illinois, Missouri, Arizona."
Rule 2-105(a)(3) of the Illinois Code of Professional Responsibility provided:
"A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or her practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out as `certified' or `specialist'."
Rule 2-105(a) provided:
"A lawyer shall not hold himself out publicly as a specialist, except as follows:
"(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation `Patents,' `Patent Attorney,' `Patent Lawyer,' or `Registered Patent Attorney' or any combination of those terms, on his letterhead and office sign."
The state court had rejected Peel's argument that the letterhead was protected by the First Amendment, reasoning that such letterhead was misleading and thus outside the confines of First Amendment protection. The Supreme Court disagreed and reversed the decision. In finding the Illinois Disciplinary rule to be in violation of the First Amendment, the Court reasoned that petitioner Peel was in fact certified by the NBTA and that the advertisement of that fact on the petitioner's letterhead was neither actually nor inherently misleading. As such, the Illinois Disciplinary Rule and its absolute prohibition of the certification statement, was too broad. See Peel, 496 U.S. at 110-111. However, the Court found the certification statement to be at least potentially misleading and held that forms of regulation other than a total ban might be allowed. "To the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty." Peel, 496 U.S. at 110 (citing In re R.M.J., 455 U.S. 191, 201-203 (1982)) (emphasis added).
See also Peel, 496 U.S. at 116, "Following the logic of those cases, a State could require a lawyer claiming certification by the NBTA as a civil trial specialist to provide additional information in order to prevent that claim from being misleading. The State might, for example, require a disclaimer stating that the NBTA is a private organization not affiliated with, or sanctioned by, the State or Federal Government. The State also could require information about the NBTA's requirements for certification as a specialist so that any inferences drawn by consumers about the quality of services offered by an NBTA-certified attorney would be based on more complete knowledge of the meaning of NBTA certification. Each State, of course, may decide for itself, within the constraints of the First Amendment, how best to prevent such claims from being misleading."(Marshall, J., concurring opinion).
In the instant case, it is likely that plaintiff's various statements of certification, including "Specialist" and "Board Certified Civil Trial Advocate" designations, are potentially misleading. In Peel, the advertisement in question — which, as noted supra, touted the attorney's certification as "Civil Trial Specialist By the National Board of Trial Advocacy" — was considered at least potentially misleading. Plaintiff's statement of certification, while not identical to Peel's, is essentially the same. There is no reason to believe and, indeed, plaintiff has offered nothing to indicate that his statement of certification has any less of a potential for the misleading of consumers. While the potentially misleading character of plaintiff's statement would not justify a prohibition by the state, it would justify a less restricted form of regulation, such as a required disclaimer. Thus, this Court must next determine whether Rule 2-105(c)(1) — with its disclaimer provision — is constitutional under the Central Hudson test and, to the extent that plaintiff is required to establish a "substantial" or "clear" likelihood of success on the merits, whether he has convinced this Court that defendant cannot meet his burden under such test.
Three Justices (Rehnquist, O'Connor and Scalia) found the advertisement inherently misleading and therefore unprotected, and three others (Marshall, Brennan and White) found it potentially misleading, and subject to narrower restrictions such as a disclaimer requirement. See Peel, 496 U.S. at 125 ("As a majority of this Court agree, * * *, petitioner's claim to certification is at least potentially misleading.") (O'Connor, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.) (internal citations omitted).
Plaintiff has not sustained his burden of demonstrating a substantial likelihood of success on the merits. New York State and the Grievance Committee have a substantial interest in protecting consumers and regulating lawyer advertising. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978) (finding a strong State interest in maintaining standards among members of its licensed professions and an especially strong interest in regulating lawyers as they are "essential to the primary governmental function of administering justice, and have historically been officers of the courts"). In addition, there is evidence that Rule 2-105(c)(1) is narrowly drawn to directly advance the interests of New York State in regulating potentially misleading advertisements by licensed attorneys in accordance with Central Hudson.
Under Central Hudson's second prong, the State must show that the "challenged regulation advances [its] interest in a direct and material way." Ibanez v. Fla. Dep't of Bus. and Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 143 (1994). The third prong requires that the government regulation be narrowly tailored. Pertinent to the analysis in this case is the legislative history of the amendment of Rule 2-105(c)(1).
Prior to June 1999, Rule 2-105(c)(1) had permitted the use of the term "specialist" only in reference to certification by the State of New York. However, because no State certification process existed, Rule 2-105(c)(1) effectively prohibited using the term "specialist" in advertisements. Following the ruling in Peel, the New York State Bar Association's Special Committee on Lawyer Advertising and Lawyer Referral Service Regulation ("Advertising Committee") concluded that such a prohibition was not in accordance with Peel and began a study of possible approaches to an amendment of Rule 2-105(c)(1) in order to bring it into conformity therewith. Gerstman Decl. ¶ 6. Specifically, the Advertising Committee was concerned, as were the concurring Justices in Peel, with the ways "certification" in an advertisement could be potentially misleading. Their concerns included the following: (1) the possible misimpression that the NBTA was a governmental agency; (2) the juxtaposition of the board certification with the state or states of licensure and the potential for a misimpression that the certification was recognized therein; (3) the possible misimpression that "certification" means government sanction; and (4) that the reference to "Civil Trial Specialist" might cause the public to think that the attorney is necessarily a better — i.e., more capable — trial lawyer. Gerstman Decl. ¶ 12. With those concerns and the principles espoused in Peel before it, the committee drafted Rule 2-105(c)(1). Id. at ¶ 13. Eventually, Rule 2-105(c)(1) was adopted by the House of Delegates of the New York State Bar Association — the Association's policy-making body — and promulgated by the Administrative Board of the Courts of New York State.
The Committee was appointed in 1993 to, among other things, "monitor developments in lawyer advertising nationally and within the state, and make recommendations concerning changes in existing lawyer advertising rules * * *." See Declaration of Sharon Stern Gerstman, Esq., in Opposition to Plaintiff's Motion for Preliminary Injunction, Ex.B.
The Administrative Board of the Courts of the State of New York consists of the Chief Judge of the New York Court of Appeals and the presiding Justices of the four Appellate Divisions.
Plaintiff contends that defendant cannot sustain his burden under the second and third prongs of Central Hudson for two reasons. First, because defendant has failed to provide a study or empirical evidence of a real harm created by plaintiff's advertising and, second, because the 44-word disclaimer is too long, confusing and redundant to be considered as narrowly drawn. Defendant argues that the Grievance Committee is under no obligation to provide empirical studies showing the manner in which plaintiff's advertising is misleading to the public and, further, that Rule 2-105(c)(1) was carefully and methodically drafted to specifically, and narrowly, address legitimate State interests. Plaintiff has not demonstrated to this Court a clear or substantial likelihood of success in arguing that defendant cannot meet its burden under Central Hudson.
Defendant has presented evidence to show that Rule 2-105(c)(1) is narrowly drawn to directly advance New York's substantial interest in protecting the public from potentially misleading advertising. The three-part disclaimer of Rule 2-105(c)(1) attempts to negate the potentially misleading inferences that NBTA is affiliated with a governmental entity, that certification is required in New York to practice law and that certification implies greater competence than other attorneys working in that particular field of law. First, as previously discussed, this Court has little trouble in finding plaintiff's advertising to be potentially misleading. Second, Rule 2-105(c)(1) appears to have been carefully drafted with enough forethought and precision to be considered a reasonable means to address the potentially misleading nature of certification statements in attorney advertisements. Furthermore, to the extent Rule 2-105(c)(1) does not prohibit an attorney from advertising the fact that he or she is certified by an organization but rather requires additional disclosure in conjunction therewith, Rule 2-105(c)(1) infringes more narrowly on plaintiff's First Amendment rights than does a flat prohibition on speech. This Court does not suggest that the disclosure requirements of Rule 2-105(c)(1) do not implicate plaintiff's First Amendment rights so as to prevent plaintiff from having the opportunity to litigate the merits and argue that Rule 2-105(c)(1) is unduly burdensome so as to offend the First Amendment. The Court merely finds, for the purposes of this preliminary injunction motion, that plaintiff has not demonstrated a "substantial" or "clear" likelihood of success on the merits in arguing that enforcement of Rule 2-105(c)(1) violates his rights under the First and Fourteenth Amendments.
Plaintiff ignores the fact that his advertisement might be potentially misleading. Instead, he attempts to rely on the fact that his certification statement is not inherently or actually misleading in light of the holding in Peel. Such a finding, he argues, prevents defendant from asserting a "real" or substantial interest which would support Rule 2-105(c)(1). Pl. Mem. Of Law (C)(1)(i). Such a reliance misapprehends Peel. The Court did not find an absence of a substantial State interest. Rather, it held that Illinois had not presented enough evidence to show a sufficient interest justifying a categorical prohibition on attorneys' certification statements and specifically left room for less restrictive regulations. See Peel, 496 U.S. 110 n. 17 ("We agree with Justice MARSHALL * * * that a holding that a total ban is unconstitutional does not necessarily preclude less restrictive regulation of commercial speech").
It is important to emphasize that the third prong of Central Hudson, which mandates that the regulation be "narrowly tailored," does not require the government to utilize the "least restrictive means" to regulate commercial speech. "What our decisions require, instead, is a fit between the legislature's ends and the means chosen to accomplish those ends, a fit that is not necessarily perfect, but reasonable, that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served, that employs not necessarily the least restrictive means but * * * a means narrowly tailored to achieve the desired objective." Florida Bar, 115 U.S. at 632 (quoting Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)) (internal quotations omitted).
See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985) (emphasizing that because disclosure requirements infringe much more narrowly on an advertiser's interests than do flat prohibitions on speech, warnings or disclaimers might be appropriate in order to dissipate the possibility of consumer confusion or deception).
Plaintiff also challenges enforcement of the disclaimer requirement on the grounds that it is unconstitutionally vague, both facially and as applied to him. Due process requires that regulations be sufficiently specific to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited." Rock of Ages Corp. v. Sec. Of Labor, 170 F.3d 148, 156 (2d Cir. 1999) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). "A vague law impermissibly delegates basic policy matters * * * for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned, id. at 108-109. A court must first determine whether the statute gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited and then to consider whether the law provides explicit standards for those who apply it. United States v. Strauss, 999 F.2d 692, 697 (2d Cir. 1993). "Accordingly, regulations satisfy due process as long as a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, has fair warning of what the regulations require." Rock of Ages, 170 F.3d at 156.
Plaintiff asserts that the language "prominently made," as found in the disciplinary rule, is unconstitutionally vague because the rule fails to give a person of ordinary intelligence a reasonable opportunity to know when a disclaimer is "prominently made." Further, he argues, Rule 2-105(c)(1) fails to provide explicit guidelines for the Grievance Committee in enforcing the rule thereby giving defendant unbridled discretion to interpret and enforce the Rule's provisions. Defendant counters that "prominently made" is a common sense term clear to the average lawyer. In addition, defendant asserts that the particular language of "prominently made" was used as a practical approach to address the multitude of different media available for advertising. Plaintiff has not demonstrated a clear likelihood of success that Rule 2-105(c)(1) is unconstitutionally vague, either on its face or as applied to himself.
Plaintiff also argues that the 44-word disclaimer, because of its size, operates as a defacto prior restraint on his speech, given the limited space available on business cards, billboards and letterheads. At this early stage, however, plaintiff has not demonstrated a likelihood of success on this point. He has offered no proof as to the capacity of the billboards, business cards, phone books and letterheads to fully and legibly display the required disclaimer. Indeed, as evinced in the Russo Declaration, plaintiff has fully exhibited the disclaimer in his phone book and billboard advertisements. Russo Decl. Ex. A, C. Furthermore, defendant has demonstrated the feasability of placing the disclaimer on plaintiff's business card and letterhead. Russo Decl. Ex. B, D.
While plaintiff is correct that "prominently made" in the context of Rule 2-105(c)(1) is subjective in its interpretation, the language is sufficiently plain and adequate to put attorneys on notice that the disclaimer provision cannot be presented in an obscure fashion. The term "prominently made" simply informs an attorney who wants to advertise some type of certification that the accompanying disclaimer must be displayed in a manner that will not render it unreadable and meaningless for the average viewer. Furthermore, plaintiff, as an attorney, has the benefit of guidance from case law, court rules and — more importantly — the Grievance Committee. See Arnett v. Kennedy, 416 U.S. 134, 160 (1974) (holding that the availability of an advisory procedure was pertinent in rejecting petitioner's vagueness challenge to a regulation). For these reasons, plaintiff has failed to demonstrate a substantial or clear likelihood of success on the merits of his claim that Rule 2-105(c)(1) is unconstitutionally vague, on its face or as applied to his business card, billboard, phone book and letterhead advertisements.
The Advertising Committee, which proposed the current language of Rule 2-105(c)(1), purposely avoided imposing specific font size requirements because of the large number of advertising methods and media meant to be covered by the rule. The term "prominently used" was selected because it could easily be applied to many forms of advertising and "would be clear to the average lawyer, given its commonplace definition." Gerstman Decl. ¶ 25, 26. In so choosing, the Advertising Committee followed similar language of statutes in at least eleven other states relating to the display of disclaimers in commercial speech settings. Gerstman Decl. ¶ 24.
As noted in the Scarsella Declaration, it is the policy of the Grievance Committee to informally resolve disciplinary complaints. This allows an attorney to confer with the Committee regarding the application and interpretation of disciplinary rules. Scarsella Decl. ¶ 15.
Such failure should not serve as an indication that plaintiff has not demonstrated serious questions about the merits of the case. In this regard, this Court notes the somewhat arbitrary and inconsistent manner in which the Grievance Committee has issued guidelines in its interpretation of Rule 2-105(c)(1). The Court tends to agree with plaintiff that a person of ordinary intelligence would not have determined that placing the disclaimer on the reverse side of a business card would satisfy the "prominently made" requirement. See Pl. Mem. Of Law (2)(i)(a). In addition, it is unclear whether defendant, as Chairman of the Eighth Judicial District Grievance Committee, has the authority to issue guidelines and what effect, if any, such guidelines have in other jurisdictions. Such arguments make them fair grounds for litigation. Nevertheless, plaintiff has not satisfied the heightened burden of demonstrating a substantial and a clear likelihood of success on the merits.
Accordingly, it is hereby ORDERED that plaintiff's motion for a preliminary injunction filed December 21, 2001 is denied in its entirety.
Plaintiff's motion for preliminary injunction based on claims of violations of Article 1 §§ 6 and 8 of the New York State Constitution is also denied as those allegations are identical to his claims under the United States Constitution.