Autophagy in the Courts

While New York's legal community races into its third month of debate over proposed limitations on lawyer advertising, most New Yorkers are thinking only of what the lawyer's are not discussing — real tort reform. The proposal, on which the Office of Court Administration is currently accepting comments, would drastically curtail the types of advertisements lawyers could air. For example, it would ban the use of celebrity endorsers or any depiction of a courthouse or courtroom. Lawyers are officers of the court and it strikes us as logical that the courts can tell them how to operate, but the proposed limits are raising hackles.

One of America's most prominent First Amendment lawyers, Floyd Abrams, recently sent a letter to the court administrator warning that some lawyers could sue to block the rules if they are enacted (who said irony was dead?). Mr. Abrams is prepared to argue that the rules are not targeted carefully enough at actual fraudulent advertising to pass constitutional muster. The Federal Trade Commission, which oversees advertising, has also sent a letter to the New York courts opposing the prospective rules, on the same grounds, as our Joseph Goldstein reports this morning.

The FTC writes that "Debate about attorney advertising involves important policy concerns, such as preventing statements that would deceive or mislead lay people and thereby undermine public trust in lawyers and the legal system." This debate does indeed touch on "important policy concerns," but those concerns aren't going to be addressed by any regulation on advertising. New York's real lawyer problem is a legal culture that encourages frivolous lawsuits and garners the state consistently bad grades on state rankings of legal dysfunction. New York's lack of a cap on non-economic damages is a bigger legal headache than an obnoxious 30-second television spot.