Hayes v. New York Attorney Grievance Committee of the Eighth Judicial District, 672 F.3d 158

Hayes is a New York lawyer who advertises as a 'Board Certified Civil Trial Specialist' based on NBTA accreditation, a private ABA-accredited organization.
New York Rule 7.4 requires a disclaimer when stating certification, identifying the certifying organization and three statements about government affiliation, necessity of certification, and comparative competence.
In 1999 Hayes used NBTA-certified claims on billboards; the Grievance Committee questioned the print size of the disclaimer and later investigated his letterhead for lacking the disclaimer.
Hayes filed a declaratory judgment action; the district court upheld the rule as applied, granting summary judgment to the Committee, and Hayes pursued vagueness challenges.
A bench trial addressed vagueness, with the magistrate upholding the rule as not unconstitutionally vague as applied, while Hayes challenged the clarity of 'prominently made'.
The Second Circuit review centers on whether Rule 7.4's disclaimer components and the 'prominently made' standard violate the First Amendment or are void for vagueness as applied to Hayes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 7.4's disclaimer components survive strict scrutiny	Hayes contends the disclaimer is unconstitutional speech restriction.	Grievance Committee argues the disclaimer serves consumer protection and is narrowly drawn.	Disclaimers 2 and 3 invalid; first component may be upheld.
Whether stating that the certifying organization is not affiliated with government is constitutional	Hayes argues it is permissible and not misleading.	Committee asserts it prevents government-implied endorsement.	Constitutional; supports government interest in education.
Whether the assertion that certification is not a requirement for practice is permissible	Hayes contends the claim is unsupported and misleads the public.	Committee claims it prevents misperception that certification is required.	Unpersuasive; fails substantial record support.
Whether the 'prominently made' requirement is void for vagueness as applied to Hayes	Hayes argues the standard is too vague and unpredictable.	Committee maintains a generic standard suffices to guide enforcement.	Vague as applied; unconstitutional; enjoined absent advance notice and guidance.

Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (Supreme Court, 1990) (absolute prohibition rejected; cautioned about potential misleading disclosures)
Ibanez v. Florida Dep't of Bus. & Prof. Regulation, 512 U.S. 136 (Supreme Court, 1994) (disclaimer requirements invalid when harms not demonstrated; Central Hudson framework)
Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (Supreme Court, 1980) (four-part test for commercial speech restrictions)
Edenfield v. Fane, 507 U.S. 761 (Supreme Court, 1993) (enhanced vagueness scrutiny for regulations affecting protected rights)