With Barry Bonds hitting home run No. 754 yesterday (one shy of Hank Aaron’s record), and A-Rod swatting #499 on Wednesday, sports fans around the nation are thinking about round-trippers and Big Bats. Nonetheless, while some weblogging lawyers may be interested in sluggers (in pinstripes), most are still concentrating on the law, rather than the game. Indeed, after many of New York State’s recently-adopted lawyer-ad-rules–on-steroids were struck down earlier this week, in Alexander v. Cahill (USNDNY, Dkt. 5:07-CV-117, July 20, 2007; see our prior post, and Consumer Law & Policy Blog, July 23, 2007), many lawyers are wondering just when the profession’s own Heavy Hitters will be back in the line-up in tv, radio, yellow-pages and billboard advertising. You see, the Alexander court struck down a provision banning use of “a nickname, moniker, motto, or trade name that imples an ability to obtain results in a matter.”
law firm picnic
the ump consults
his Blackberry…………………………… by david giacalone – Baseball Haiku (2007)
The winning plaintiffs in Alexander v. Cahill were the Syracuse law firm Alexander & Catalano. Their hometown Syracuse Post-Standard reported earlier this week that “The Heavy Hitters are back in the game. And they can be as funny and irreverent as they choose in advertising their legal services.” “‘Heavy Hitters’ knock down rules on lawyer ads,” July 24, 2007. According to Newsday/AP, “‘The Heavy Hitters’ can’t start hitting home runs again just yet, but at least they’ve reached base.” “Heavy hitters get past first base, must wait for state appeal” (July 24, 2007) The article quotes plaintiff James L. Alexander:
“Being a lawyer, I respect the system, but we agree with the judge’s decision,” Alexander said. “For the state’s rules to survive, there would be sterile advertising, unappealing advertising, and ineffective advertising. We don’t want to reverse 30 years of jurisprudence.
“We don’t want to stick this in anybody’s face,” Alexander said. “It affects lawyers throughout the state, but more than lawyers it protects the public to get uncensored information. The public is used to seeing advertising that is entertaining, and they can make their own decisions. They’re not being brainwashed. The public doesn’t need the protection. They’ve been dealing with it for decades.”
Alexander & Catalano had billed itself in most of its advertisements as “The Heavy Hitters.” The firm abandoned the motto for fear of running afoul of the new rules’ prohibition against implying the ability to obtain results.
Both dollars and principle are involved when it comes to the use of the Heavy Hitter moniker, however, so it is no surprise that Alexander & Catalano already has commercials in the can and ready to roll reprising their motto. As the New York Law Journal reported on July 27, the firm:
“has just taped ads featuring testimonials from clients and will begin airing them on Monday, with the nickname ‘heavy hitters’ back as a tagline.“
Only a last-minute order staying Judge Scullin’s permanent injunction on the enforcement of the nickname rule and other affected provisions, will delay the return of the Heavy Hitter motif this week. Here in the NY Capitol Region, the law firm Martin Harding & Mazzotti had been using the Heavy Hitter slogan for over five years, but dropped in when the new rules went into effect on February 1st. According to NYLJ, “Partner Paul B. Harding said Thursday that after Scullin’s ruling, the firm was trying to decide between again being ‘heavy hitters” or to use another nickname: ‘Team 24/7’.” The article continues:
[full-size phone book ad]
The “heavy hitters” tagline “did stick a lot more than we thought it would,” Harding said. “We used it for about five years and I am not sure people actually realized we stopped using it. Our numbers [of calls] didn’t fall off.”
The f/k/a Gang has often assailed the silly nickname bans, see, e.g., here and there. [And see MyShingle.] They are a brand of regulatory overkill that has nothing to do with protecting consumers. Instead, they are aimed at protecting the image of lawyers, while avoiding the competition that comes from effective advertising. We will be quite pleased when the Alexander opinion is affirmed and adopted by courts everywhere.
Ted hits another homer
a seagull high over right field
gets out of the way
after the grand slam
the umpire busy
with his whisk broom
under the lights
hitting it out of the park
and into the night
…………. by Cor van den Heuval – orig. pub. Play Ball (1999); from from Baseball Haiku (edited, with translations, by Cor van den Heuvel and Nanae Tamura, W.W. Norton Press, April 2007)
last day of school . . .
the crack of a bat
through an open window
………… by Randy Brooks – Baseball Haiku (2007)
bases loaded
a full moon clears
the right field fence………………………………. by Tom Painting from Baseball Haiku; and “piano practice“
Louisville Slugger
the boy’s fingertips caress
the trademark…………………………………. by Lee Gurga – Baseball Haiku (2007)
p.s. As noted at ABA Journal’s Law News Now, NYSBA bar president Kathryn Grant Madigan is trying to escape blame for the unlawfully-restrictive advertising rules that were struck down this week. Here’s the Comment that I left at the ABA site:
The New York State Bar Association attempt to distance itself from the unconstitutional ad rules that it inspired is misleading and cowardly. In 2005, NYSBA declared war on lawyer advertising in the name of the image/dignity of the profession. (See, e.g., our post “NYBar disses lawyer advertising“). In 2006, its Advertising Task Force called for far more restrictive rules than were eventually adopted by the NYS Judiciary — demanding that ads not only be “true, accurate and clear”, but also “fair,” “rational” and “relevant to the thoughtful selection of counsel.” In a press release dated Jan. 4, 2007, NYSBA tried to take credit for the toned-down final version of the rules. (see our discussion of the rules) 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.
Prominent first amendment lawyer Floyd Abrams has correctly pointed out that the Alexander decision “exposes the reality that there appears to have been almost no empiric basis for the adoption of almost any of these rules.” NYSBA knew there was no proof when they proposed sweeping new restrictions on lawyer advertising. Perhaps their folly will embarrass other state regulators into backing off the foolish crusade to blame lawyer advertising for the sorry state of the bar’s image.
crack of the bat
the outfielder circles under
the full moon……………… by George Swede – Baseball Haiku (2007)
Seattle sunset
Ichiro sends one
toward the Sea of Japandistant thunder
the home run hitter
drops a bunt
……….. by Ed Markowski