Buffalo attorney wins lengthy advertising case

March 7, 2012 Updated Mar 7, 2012 at 8:13 AM EDT

By WKBW News
By Business First by Matt Chandler

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March 7, 2012 Updated Mar 7, 2012 at 8:13 AM EDT

A Buffalo attorney who challenged the New York State Attorney Grievance Committee's rules related to lawyer advertising has prevailed, ending a legal battle that dates back more than a decade.

J. Michael Hayes, a personal injury attorney, filed suit against the committee in 2000 after a grievance was filed accusing him of violating the rules for attorney advertising.

Hayes, was promoting his professional certification as a trial advocate both in advertising and on his firm letterhead when he was informed by the grievance committee that such wording required a lengthy disclaimer, something the attorney did not include on his letterhead.

"I filed the first suit in 2000 challenging the ruling," he said.

The lawsuit was dismissed, due to the pending grievance against Hayes. In turn, he said he withdrew his letterhead, the grievance was closed, and, in 2001, he refiled his lawsuit challenging the rules. Three years later, Judge John Elfvin ruled in favor of the Grievance Committee. Hayes appealed, and this week, nearly eight years later, the Second Circuit Court of Appeals overturned the ruling and sided with Hayes.

"I think this is great for the legal profession," he said of the ruling that determined the restrictive rule as it related to attorney certifications, violated the First Amendment. "There are attorneys who actually go to court and try cases and they may have greater skills than a general practitioner. Now, with this ruling, they can tell the public that, where before they couldn't, unless it was under very onerous constraints."

Asked if he felt that attorneys were unjustly targeted for their advertising while other professions exist under much less cumbersome rules, he said he didn't think so, saying it came down to interpreting the rules as they were written.

"This is similar to a board-certified doctor," he said. "I don't know anybody who would go to a physician that wasn't board-certified, and I think the same could be true for attorneys."

Was Hayes concerned about challenging the Grievance Committee, a group that wields a tremendous amount of power in New York state?

"I wasn't, and I am not concerned after this ruling, because I think they are a professional group that conducts themselves as such," he said. "This was just a case where I disagreed with the rules and challenged it."

Hayes said he is one of only four attorneys in Buffalo that are currently certified. The rest, he said, have either let their certification lapse, or chosen not to take the exam because the rules did not allow them to promoted themselves as certified, though he expects that to change in the wake of the latest court decision.

"I know a bunch of highly-qualified lawyers in Buffalo who have said to me, 'Why would I want to get this thing (certification) when I can't use it? If I give a lecture and someone says that I'm board-certified, now do I have to give a 66-word disclaimer?' Attorneys were concerned that they would end up having a grievance filed against them if they got this certification."

Hayes said he doesn't expect the decision to be appealed, though as he said, "I guess I will find out in 30 days."

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