Attorney may sue to enjoin enforcement of disciplinary rule governing statements of specialization as unconstitutionally vague

Law Reporter, Nov 2004

ATTORNEYS

Hayes v. Zakia, 327 F. Supp. 2d 224 (W.D.N.Y. 2004).

An attorney who claims that a New York disciplinary rule governing statements that an attorney is a "specialist" is unconstitutionally vague may sue to enjoin its enforcement, a federal district court held.

Here, Hayes, an attorney, disputed the assertion of the attorney grievance committee for his district that his letterhead violated state attorney disciplinary rules by describing him as a "Board Certified Civil Trial Advocate National Board of Trial Advocacy" without including a disclaimer that the certifying organization is not affiliatcd with any governmental authority, and certification is neither required by the state for law practice nor necessarily indicative of greater competence than other lawyers. The rule requires that any claim an attorney is a specialist be accompanied by a prominent disclaimer. The committee wrote Hayes a letter stating that if he refused to include the disclaimer, it would recommend disciplinary action and request that he appear before the committee.

Hayes sued the committee, alleging, among other claims, that the rule is unconstitutionally vague because it (1) fails to give a person of ordinary intelligence a reasonable opportunity to know either what is prohibited or when a disclaimer satisfies the requirement, and (2) fails to give the committee explicit guidelines for enforcement. Both parties moved for summary judgment.

The court noted that plaintiff has offered evidence to support the assertion that the disciplinary rule does not contain explicit standards for determining whether a disclaimer has been "prominently made." Further, plaintiff has shown that defendant's enforcement of the rule has been inconsistent and defendant has vacillated in its position regarding what language is specifically and actually required by the rule. This evidence creates a genuine issue of material fact making summary judgment improper, the court held.

Accordingly, plaintiffs claim may proceed.

Plaintiff's Councel

*J. Michael Hayes, Buffalo, N.Y., pro se