Pop-ups on Non-Law Firm Websites OK

Attorneys in New York will be able to advertise using pop-ups on other websites, a New York federal district court ruled.

A total ban on pop-up advertising for lawyers on websites other than the firm’s own website violates the First Amendment because the state failed to show that regulation of pop-up advertising was any more difficult than the regulation of advertisements on television, radio or the firm’s own website. The pop-up ban had been imposed on lawyers by the disciplinary committee of New York State Court of Appeals.

Advertising by attorneys is considered commercial speech that enjoys some First Amendment protection. To sustain such regulations, the state must show that it has a substantial interest to be achieved by the restriction, demonstrate that the restriction materially advances the state interest and establish that the restriction is narrowly drawn. The court found there was a substantial interest to ensure that attorney advertisements are not misleading but found that restricting all pop up advertisements was too broad.

“Without question there has been a proliferation of tasteless, and at times obnoxious, methods of attorney advertising in recent years,” the court observed. “New technology and an increase in the types of media available for advertising have exacerbated this problem and made it more ubiquitous. As a result, among other things, the public perception of the legal profession has been greatly diminished.”

The opinion found that the state did not violate the First Amendment when it required that lawyers who use domain names that do not use the name of the lawyer or law firm must include on all pages of the website the attorney’s name. In addition, the regulation prohibits the use of any domain name that implies the ability to obtain results.

James L. Alexander et al v. Thomas J. Cahill et al., U.S. District Court N.D.N.Y. No. 07 CV 117, filed July 23, 2007.