The Second Circuit recently held that a similar rule prohibiting the use of “a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter” in attorney advertisements did not satisfy
Central Hudson. Alexander, 598 F.3d at 94–95. It acknowledged the “compelling, commonsense argument that, given the uncertainties of litigation, names that imply an ability to obtain results are usually misleading.”
Id. at 94 (citing New York report that “the use of dollar signs, the terms ‘most cash’ or ‘maximum dollars,’ or like terms that suggest the outcome of the legal matter” is “likely to be false, deceptive or misleading”). Nevertheless, it struck down the rule because of “a dearth of evidence in the present record” to support a “prohibition on names that imply an ability to get results when the names are akin to, and no more than, the kind of puffery that is commonly seen, and indeed expected, in commercial advertisements generally.”
Id. at 95. In doing so, the court specifically noted that a regulation that failed
Central Hudson for want of evidence might lawfully be enacted on a different record.
Id. at 91–92. After analyzing the record in this case, the court concludes that LADB has provided the necessary evidence—by means of the Louisiana surveys and focus groups—that the Second Circuit found to be absent from
Alexander.