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sunEthics
Covering legal ethics, judicial ethics, bar admissions in Florida, Tennessee, and nationally. See our Subject Index to past postings.
Florida - ADVERTISING and SOLICITATION
Bills are introduced in the Florida Legislature to regulate aspects of advertising for legal services. [Added 4/3/23]
Two bills have been introduced in the Florida Legislature that would regulate legal services in certain personal injury matters. Both bills address advertising by lawyers and other entities (referral services or lead generators) for personal injury claims against drug manufacturers. The Senate bill (SB 1246) and the House bill (HB 1205) share many similarities.
Each bill would prohibit ads for legal services from doing the following: presenting the ads as medical alerts, health alerts, drug alerts, or public service announcements; displaying logos of governmental agencies in a manner that suggests that the ad is presented by the agency; and using the term “recall” in connection with a product that has not been recalled pursuant to applicable law.
The bills would require certain information to appear in the ads, including: the identity of the ad’s sponsor; the identity of the lawyer or law firm responsible for providing the advertised legal services or, if the advertiser is a referral service, the process for referring the case to a lawyer; that the ad is a paid advertisement for legal services; that the viewer should consult his or her physician before making decisions regarding prescribed medication or treatment; and a statement that the medication or device is approved by the FDA, unless it has been recalled in accordance with applicable law. The bills contain specifics regarding how the required information must be presented.
The two bills differ in one important respect. The Senate bill provides that its requirements would not apply “to an advertisement that has been reviewed and approved by an ethics or disciplinary committee of The Florida Bar in accordance with its rules of professional conduct.” The House bill contains no corresponding provision, thus giving rise to a separation of powers concern.
Similar laws have been enacted elsewhere. See, e.g., Tennessee Code Annotated 47-18-3002.
Board of Governors approves advisory opinion addressing what fees lawyers may pay, or not pay, to receive referrals from qualifying providers. [Added 1/10/19]
Rule 4-7.22 permits lawyers to pay certain fees to “qualifying providers” for case referrals. Under the Rule, those fees may not be “a division or sharing of” legal fees. The Bar’s Board of Governors published Florida Ethics Opinion 18-1 to provide guidance to lawyers regarding what types of payments are permissible or impermissible under the ethics rules.
Opinion 18-1 notes that there are many different types of payments charged by qualifying providers, and that such charges must be “assessed on a case-by-case basis.” There are factors to be considered when making this determination. Factors mitigating in favor of finding the charge permissible are: that the charge is reasonably based on the qualifying provider’s marketing and administrative costs plus a reasonable profit; and that the charge is imposed regardless of whether the lawyer is hired by the client. On the other hand, factors mitigating in favor of a conclusion that the charge is impermissible are: that the charge is based on the perceived value of the particular case; that the qualifying provider collects the lawyer’s fee from the client, keeps a portion for its charge, and then remits the rest to the lawyer; that the qualifying provider interferes with the lawyer’s independent professional judgment in representing the client; and that the charge provides an incentive for the qualifying provider to improperly solicit prospective clients or improperly market its service.
Applying these factors, Opinion 18-1 stated that the following types of charges are generally permissible: a reasonable, pre-arranged fixed charge per time period (e.g., monthly); a reasonable, pre-arranged fixed charge for each time a consumer views information about a specific lawyer (pay per click); a reasonable, pre-arranged fixed charge per matter referred that is not contingent on the outcome of the matter and does not vary based on the perceived value of the case; and a reasonable, pre-arranged fixed charge per matter referred to the lawyer that varies based on the type of matter only if the varying charge is based on demonstrably different marketing and administrative costs rather than the perceived value of the case.
In contrast, the following types of charges generally are not permissible: a charge calculated as percentage of the fee received by a lawyer or percentage of the client’s recovery; a charge based on the perceived value of the case; a flat charge that differs based on the perceived value of the case; a flat charge per case accepted; and a flat charge per case accepted by a participating lawyer that differs based on the type of matter (e.g., personal injury versus family law). Florida Ethics Opinion 18-1.
Federal court strikes down Florida Bar rule prohibiting non-certified lawyers from claiming specialization or expertise in particular areas of law. [Added 10/13/15]
A Florida law firm filed a federal suit challenging 2 Florida Bar lawyer advertising rules. The first challenged rule, Rule 4-7.13, prohibits deceptive and inherently misleading advertisements, including “references to past results unless such information is objectively verifiable.” Plaintiffs argued that the rule violated the First Amendment, on its face and as applied, and was unconstitutionally vague. (The vagueness challenge was rejected in an earlier order.) The court ruled that the challenge to Rule 4-7.13 was not ripe because Plaintiffs had failed to appeal the Standing Committee on Advertising’s adverse interpretation of the rule to the Bar’s Board of Governors.
The second rule, Rule 4-7.14, prohibits a lawyer from advertising that he or she is “a specialist, and expert, or other variations of those terms” unless the lawyer is certified by the Florida Bar, another bar’s comparable certification program, or an organization accredited by the ABA.
Unlike Rule 4-7.13, the prohibition on the use of “specialist” or “expert” was ripe for challenge. “The application of [Rule 4-7.14] is clear: [Law Firm] cannot say it specializes or has expertise in mass-tort or unsafe-product cases, or even in personal injury cases, even though the firm undeniably has expertise in these areas. Nor can any individual attorney” in the firm make such a claim, “even if the attorney handles only cases of that kind, and even if the attorney has successfully handled many such cases.”
Applying the First Amendment framework of analysis from Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980), the court concluded that “the Bar’s ban on truthful statements about a lawyer’s or law firm’s specialty or expertise, at least as applied to websites, fails all three prongs of the Central Hudson test.”
Although the challenge was brought in the context of Law Firm’s website, the Bar has since announced that its advertising review program will no longer find non-compliance when an ad makes truthful claims of specialization or expertise. See “Court strikes rule on who may call themselves experts,” in the October 15, 2015, issue of the Florida Bar News. Searcy v. Florida Bar, __ F.Supp.2d __ (N.D. Fla., No. 4:13cv664-RH/CAS, 9/30/2015), 2015 WL 5769238.
Board of Governors concludes that text messaging to prospective clients is permitted as advertising rather than a form of prohibited solicitation. [Added 8/13/15]
At its July 2015 meeting in Miami, the Board of Governors overturned a Standing Committee on Advertising decision concerning lawyers’ use of text messaging in an effort to obtain clients.
The advertising committee had concluded that sending text messages to prospective clients was “solicitation” rather than a form of advertising. Solicitation is prohibited by Rule 4-7.18(a).
Agreeing with an 8-0 recommendation by its Board Review Committee on Professional Ethics, the Board of Governors overruled the advertising committee’s decision. Text messages are a form of advertising and are permissible if the sending lawyer follows the Rules of Professional Conduct that govern direct written communication to prospective clients. These regulations are contained in Rule 4-7.18(b), and include requirements such as: stating in the first line of the text that the text is an advertisement; filing copies for review with the Bar; and keeping a record of the texts and who their recipients.
For more information, see this article in the August 15, 2015, issue of the Florida Bar News.
Florida Bar withdraws its “Guidelines for Advertising Past Results” after federal court finds them unconstitutional. [Added 12/22/14]
The U.S. District Court for the Southern District of Florida granted summary judgment in favor of a lawyer who sued the Florida Bar seeking to invalidate the “Guidelines for Advertising Past Results” that were adopted by the Bar’s Board of Governors in December 2013. In May 2013 the Supreme Court approved Bar-proposed rules allowing lawyers to advertise past results. See Rules of Professional Conduct 4-7.13(b)(2) and 4-7.14 (adopted in In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 2013). The Bar’s adoption of the “Guidelines,” however, effectively banned past results from “indoor and outdoor display and radio and television media.”
The court ruled that the Guidelines’ interpretation of the rules “to completely prohibit the use of past results in attorney advertising in indoor and outdoor display, television and radio media, contained in the section of the Guidelines titled ‘Unacceptable Media,’ is UNCONSTITUTIONAL in violation of the First Amendment to the United States Constitution.” Accordingly, the court enjoined the Bar “from enforcing Rules [of Professional Conduct] 4-7.13 and 4-7.14 to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.” Rubenstein v. Florida Bar, __ F.Supp.2d __ (S.D. Fla., No. 14-CIV-20786-BLOOM/Valle, 12/8/2014).
Florida Bar adopts “Guidelines” that severely restrict lawyers’ ability to advertise their past results. [Added 12/23/13]
In December 2013 the Florida Bar Board of Governors approved “Guidelines for Advertising Past Results.” In May 2013 the Florida Supreme Court rules allowing lawyers to advertise their past results. See Rules of Professional Conduct 4-7.13(b)(2) and 4-7.14 (adopted in In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 2013). But with the adoption of these new Guidelines for Advertising Past Results, the Bar has effectively banned the use of past results in “indoor and outdoor display and radio and television media.” For billboard, radio, and TV advertising, the Guidelines state that “the Bar generally will not approve advertisements in such media that include references to past results.”
Website advertising may continue to include references to past results, but the Guidelines now mandate how those results may be used. If an ad indicates that a client received a specific dollar amount, the ad may list only the “net amount” received by the client. Interestingly, the “net” amount is defined as the amount after deductions for attorneys’ fees and litigation-related expenses, but “[m]edical expenses that are reimbursed to the client or paid on behalf of the client may be included in the net amount.” The ad may have this disclaimer: “After deduction of attorneys’ fees and expenses.”
If the ad includes a dollar amount that is not linked to a specific client, the dollar amount may be the “gross amount” before deductions. In that event, the ad must have this disclaimer: “Before deduction for attorneys’ fees and expenses.”
The Guidelines also specify how structured settlement amounts may be used.
All ads that have dollar amounts listed “must include the following prominently disclaimer prominently displayed unless objectively verifiable documentation to the contrary can be produced: ‘Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.’”
The Guidelines also prohibit the advertising of “collective or aggregate results” under the rationale that they are inherently misleading under Rule 4-7.13.
The Guidelines are effective immediately. For previously-approved ads that will no longer comply in light of the new Guidelines, the Bar plans to contact advertisers and give them approximately 30 days to discontinue using the ads. See Rule 4-7.19(f)(4).
Federal suit filed against Florida Bar challenging constitutionality of advertising rules. [Added 12/23/13]
A Florida law firm and its partners have sued the Florida Bar in United States District Court (Northern District of Florida) alleging that the Bar’s lawyer advertising rules are unconstitutional. The suit was prompted by application of the lawyer advertising rules to law firm websites and blogs, as well as by the recent controversy over listing law firms on LinkedIn. (Regarding the LinkedIn issue, see “LinkedIn’s Headings Conflict with Ad Rules,” Florida Bar News, November 15, 2013). Click here to see a copy of the complaint.
The plaintiffs have asked the court to declare unconstitutional and enjoin enforcement of Rule 4-7.13’s requirement that statements in lawyer ads be “objectively verifiable” and Rule 4-7.14’s prohibition on stating or implying that a lawyer specializes or has expertise in an area of law.
Supreme Court approves major revisions to the Florida Bar lawyer advertising rules, including website regulations. [Added 1/31/13]
The Florida Supreme Court approved extensive revisions to the lawyer advertising rules that had been proposed by the Florida Bar. Among other things, the proposed rules subject lawyer and law firm websites to regulations that govern other forms of lawyer advertising. Click here to view the Court's opinion. The rule changes are effective May 1, 2013. In re: Amendments to the Rules Regulating The Florida Bar - Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 1/31/2013).
The Court adopted the rules as proposed by the Bar, with two exceptions. First, instead of changing the text under the existing rule numbers, the Court deleted the old rules and their numbers and gave new numbers to the rules as revised. The Court was concerned that without this modification "use of the same rule numbers could create confusion in case law for many years" in view of the fact that the new rules "are substantially different from the current rules."
Second, the Court adopted slightly different language than proposed by the Bar in Rule 4-7.13(b)(10), which deals with the use of "a judicial, executive, or legislative branch title by a current, former, or retired judicial, executive, or legislative branch official who is currently engaged in the practice of law." The Court explained: "We have determined that the use of such a title is not inherently misleading if it is accompanied by clear modifiers and the title is placed subsequent to the person’s name. For example, a former judge may not state 'Judge Doe (retired)' or 'Judge Doe, former circuit judge.' However, she may state 'Jane Doe, Florida Bar member, former circuit judge' or 'Jane Doe, retired circuit judge.'"
A sunEthics.com summary of significant changes appears below.
The new rules (as re-numbered by the Court) and their titles are: Rule 4-7.11 (Application of Rules); 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.14 (Potentially Misleading Advertisements); 4-7.15 (Unduly Manipulative or Intrusive Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion); 4-7.18 (Direct Contact with Prospective Clients); 4-7.19 (Evaluation of Advertisements); 4-7.20 (Exemptions From the Filing and Review Requirement); 4-7.21 (Firm Names and Letterhead); 4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).
Rule 4-7.11 (Application of Rules). The advertising rules apply to "all forms of communication in any print or electronic forum." This includes "websites, social networking, and video sharing media." Regarding websites of multistate law firms, the Comment explains that the Florida advertising rules do not apply "to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida."
The advertising rules apply to all lawyers, whether admitted in Florida or not, "who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents." Regarding ads in "national media" (e.g., cable television), the rules do not apply "if the disclaimer 'cases not accepted in Florida' is plainly noted in the advertisement."
Rule 4-7.12(Required Content). All ads must contain the name of the lawyer, law firm, lawyer referral service, or lawyer directory responsible for the ad, as well as the "city, town, or county of 1 or more bona fide office locations of the lawyer who will perform the services advertised." If the cases being advertised for will be referred to another lawyer or firm, the ad must so state. Any required information must appear in each language used in the ad. (These requirements are in the current rules.)
Rule 4-7.13(Deceptive and Inherently Misleading Advertisements). This Rule defines deceptive or inherently misleading ads, and provides a non-exclusive list of deceptive or inherently misleading statements. The list is significant primarily because of what the rule permits.
References to past results are permitted if "objectively verifiable." (The Comment points out that the affected client must give informed consent, even where "some or all of the information a lawyer may wish to advertise is in the public record.")
Comparisons or characterizations of the advertiser's "skills, experience, reputation or record" are permitted if "objectively verifiable."
The rule that required all non-lawyer spokespersons to be identified as such in ads has been replaced by a rule requiring a "prominently displayed" notice ("Not an employee or member of law firm") where the person's voice or image "creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee" of the advertiser.
Ads containing "dramatizations" of actual or fictitious events must contain a "prominently displayed" disclaimer, and a disclaimer must be "prominently displayed" when an actor "acting as a spokesperson" for the advertiser portrays someone "purporting to be engaged in a particular profession or occupation."
The rule generally allows the use of testimonials. Certain testimonials, however, are not permitted: "(A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results." The Comment defines "testimonial" as "a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation."
Finally, ads may not contain an advertising lawyer's "judicial, executive or legislative branch title, unless accompanied by clear modifiers and placed subsequent to the person's name, in reference to a current, former or retired judicial, executive, or legislative branch official currently engaged in the practice of law." (The Comment clarifies that "an accurate representation of one’s judicial, executive, or legislative experience is permitted in reference to background and experience in bios, curriculum vitae and resumes, if accompanied by clear modifiers and placed subsequent to the person's name.").
Rule 4-7.14(Potentially Misleading Advertisements). For the first time, the advertising rules explicitly regulate "potentially misleading" ads. The non-exclusive list of potentially misleading ads in this Rule includes:
-- Ads subject to "varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context;"
-- Ads "that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;" and
-- Ads with references to "membership in or recognition by an entity that purports to base such membership or organization on a lawyer’s ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria" and draws from "a reasonable cross-section of the legal community the entity purports to cover."
Significantly, the Rule provides that an ad may be rendered permissible through the inclusion of "information or statements that adequately clarify the potentially misleading issue."
Rule 4-7.15(Unduly Manipulative or Intrusive Advertisements). This Rule prohibits ads that are "unduly manipulative or intrusive." An ad is "unduly manipulative" if it: (a) has features designed to "solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client;" (b) uses an "authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, to endorse or recommend the lawyer or act as spokesperson for the lawyer;" (c) uses the voice of image of a "celebrity" (except a local announcer who regularly records ads and does not endorse the advertiser); or (d) "offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising" (except for discounted fees).
Neither the proposed Rule nor its Comment attempt to define what would be considered "intrusive" or "unduly intrusive." Similarly, "authority figure" is not defined.
Rule 4-7.16 (Presumptively Valid Content). This Rule lists certain information that is "presumed not to violate" the advertising rules. The items listed are almost identical that those in the current rules. One notable addition allows the inclusion of membership in and positions held in any state bar (the current rule is limited to Florida Bar membership and positions held).
Rule 4-7.17 (Payment for Advertising and Promotion). This Rule continues the prohibitions against (a) a lawyer paying the costs of ads by a lawyer not in the same firm (the Comment notes that firms may advertise jointly if all required information is included) and (b) a lawyer giving anything of value in exchange for a recommendation of the lawyer's services. A new prohibition is added as subdivision (c): "A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer."
Rule 4-7.18 (Direct Contact with Prospective Clients). This Rule continues to prohibit most in-person solicitation.
The rules governing direct mail (including email) communication with prospective clients is extended to all written communications seeking professional employment (not just "unsolicited" ones as provided for in the current rule). Most of the specific requirements for direct mail communications remain the same. The most significant change is that the word "Advertisement" must appear on each page of the communication (instead of only the first page).
Rule 4-7.19(Evaluation of Advertisements). This Rule requires that all ads (except websites) be filed with the Bar 20 days in advance of their first use. (The current rule requires pre-filing of only television and radio ads.) The new Rule expressly prohibits the filing of "an entire website" for review. A lawyer, however, "may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website," even though these are not required to be filed.
The current rule mandates that the Bar's finding that an ad is in compliance is binding on the Bar in a grievance proceeding (absent a misrepresentation not apparent from the face of the ad). Significantly, the new Rule allows the Bar to retract a finding of compliance at its pleasure, even when the underlying rules have not changed. Continued dissemination of the no-longer-approved ad would subject the advertiser to discipline.
The Rule creates a limited safe harbor "take-down" period for websites. A lawyer is subject to discipline for a non-complying website "only after 15 days have elapsed since the date" that the Bar sent a notice of noncompliance to the lawyer's official Bar address.
The ad review fees remain at $150 per timely-filed ad and $250 per late-filed ad.
Rule 4-7.20(Exemptions From the Filing and Review Requirement). The exemptions from the filing-and-review requirement remain substantially unchanged. A "written or recorded communication requested by a prospective client" is exempt. Although this communication itself is exempt from filing, the content of any such requested communication is subject to the advertising rules. (This is a change from the current rule, which provides that the ad rules do not apply to requested information.)
Additionally, the new Rule provides that websites are not required to be filed for review.
Rule 4-7.21 (Firm Names and Letterhead). This Rule leaves the standards governing firm names and letterhead unchanged. The Comment adds that a sole practitioner's use of "and Associates," "Group," or "Team" is impermissible because it "implies that more than one lawyer is employed in the advertised firm and is therefore misleading."
Rule 4-7.22 (Lawyer Referral Services). This Rule imposes a new requirement on the operation and advertising of lawyer referral services by mandating that all lawyer referral service ads affirmatively state "that lawyers who accept referrals from it pay to participate in the lawyer referral service." (This is in addition to the affirmative "lawyer referral service" disclosure that is required.)
Rule 4-7.23 (Lawyer Directory). This new Rule recognizes, for the first time, a "lawyer directory." This is defined as: "[A]ny person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers." Traditional telephone directories, and voluntary bar associations that list members on a website or in a publication, do not come within the definition.
Many of the regulations that apply to lawyer referral service ads also apply to "lawyer directories;" notable exceptions are: there is no requirement for lawyers listed in a "lawyer directory" to be covered by malpractice insurance; and there is no requirement that the "lawyer directory" provide the Florida Bar with a list of participating lawyers. In re: Amendments to the Rules Regulating The Florida Bar - Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 1/31/2013).
Supreme Court suspends, rather than reprimands, 2 lawyers for misconduct during their departure from their former law firm. [Added 9/9/12] -- Florida Bar v. Winters, 104 So.3d 299 (Fla. 2012).
Supreme Court hears oral argument on proposed amendments to rules governing lawyer advertising, including websites. [Added 9/9/12]
On September 7, 2012, the Florida Supreme Court heard oral argument on an extensive set of amendments to the lawyer advertising rules that had been proposed by the Florida Bar. Among other things, the proposed rules would subject lawyer and law firm websites to regulations that govern other forms of lawyer advertising. To view a video recording of the oral argument from the Supreme Court’s website, click here. To read the text of the proposed rules along with comments filed supporting and opposing the rules, go to the sunEthics.com "Proposed Changes to Florida Bar Rules" page) or to the Supreme Court’s “Rules Cases” page. The case number is SC11-1327.
Supreme Court affirms ruling that law limiting public adjusters' communication with potential clients is unconstitutional restriction on commercial speech. [Added 7/6/12] -- Atwater v. Kortum, 95 So.3d 85 (Fla. 2012).
Supreme Court grants Bar's motion to amend proposed advertising rules pending before the Court since July 2011 but removes case from oral argument calendar. [Added 2/20/12]
In an unusual move, the Florida Bar filed a motion asking the Florida Supreme Court to accept amendments to two proposed advertising rules that the Bar filed with the Court in July 2011. Oral argument on the previously-filed rules was scheduled for March 7, 2012. In approving and making this filing, the Bar's Board of Governors waived the usual procedural requirements for notice to the Bar membership and asked the Court to shorten the usual 30-day post-filing period for Bar members to file comments.
Essentially, the proposed new amendments would prohibit lawyer ads from using actors portraying "authority figures," such as police officers and judges, who are acting as spokespersons for the advertiser. The term "authority figure" is not defined in the proposed rules or comments.
On February 14, 2012, the Court granted the Bar's motion. On its own motion, the Court also removed the advertising rules case from the oral argument calendar -- at least for the time being.
Some of Florida's lawyer advertising rules held unconstitutional by federal court. [Added 10/5/11]
On remand from the Eleventh Circuit (see Harrell v. Florida Bar, 608 F.3d 1241 (11th Cir. 2010), the U.S. District Court for the Middle District of Florida held some of Florida's lawyer advertising rules to be unconstitutional and permanently enjoined the Bar from enforcing them. The case was decided on motions for summary judgment filed by Plaintiffs (Jacksonville lawyer William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc.) and by the Bar.
Plaintiffs argued that 5 of the Bar's rules governing lawyer advertising are impermissibly vague and thus facially invalid under the Due Process Clause to the Fourteenth Amendment. Those 5 rules are: Florida Rule of Professional Conduct 4-7.2(c)(1)(G) (prohibits statements that 'promise results'); Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); Rule 4-7.2(c)(3) (prohibits 'visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events' that are manipulative); Rule 4-7.5(b)(1)(A) (prohibits TV and radio ads containing any feature that is manipulative); and Comment to Rule 4-7.1 ('Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner').
Plaintiffs further contended that two rules were unconstitutional as applied. Those 2 rules are: Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); and Rule 4-7.5(b)(1)(C) (prohibits TV and radio ads containing 'any background sound other than instrumental music').
As explained more fully below, the court held:
-- Rule 4-7.2(c)(1)(G) (statements promising results) and Rule 4-7.2(c)(2) (statements characterizing quality of services) are constitutional;
-- Rule 4-7.2(c)(3) (manipulative descriptions or portrayals) and Rule 4-7.5(b)(1)(A) (manipulative features in TV and radio ads) are unconstitutionally vague on their face;
-- the Comment to Rule 4-7.1 (ads should provide only useful, factual information) is unconstitutionally vague on its face;
-- Rule 4-7.5(b)(1)(C) (prohibiting TV and radio ads with any background sound other than instrumental music) was unconstitutional as applied to Plaintiffs; and
-- Rule 4-7.2(c)(2) (prohibiting use of statement "Don't Settle for Less Than You Deserve") was unconstitutional as applied to Plaintiffs.
The court declined the Bar's implied invitation to refrain from ruling on the case until the Florida Supreme Court acts on the Bar's proposed revisions to the advertising rules (what the court called the "Revised Rules"). The Revised Rules were submitted to the Supreme Court on July 5, 2011. The Revised Rules, if adopted by the Florida Supreme Court, will replace the prohibition on "manipulative" techniques and the blanket prohibition on background sounds with a rule that prohibits "unduly manipulative" sounds, images, or dramatizations.
Facial challenge to Rule 4-7.2(c)(1)(G) (statements promising results) and Rule 4-7.2(c)(2) (statements characterizing quality of services). The court upheld these rules. In order to sustain a facial challenge, Plaintiffs were required to prove that "'the enactment is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’' See [Village of] Hoffman Estates [v. Flipside, Hoffman Estates, Inc.], 455 U.S. [489] at 495 n.7 [(1982)] (internal citation omitted) (quoting Smith v. Goguen, 415 U.S. 566, 578 (1974)) . . . As such, [Plaintiffs] must show that the challenged provisions simply have 'no core.' Hoffman Estates, 455 U.S. at 495 n.7 (internal quotation omitted)."
The Bar's broad interpretation of the challenged rules was not fatal. Similarly, the fact that the Bar's application of these rules to various ads "often appears to turn on fine, and at times almost imperceptible, distinctions" did not render them unconstitutionally vague. The court noted that over a 14-year period the Bar's Ethics Department render 52,741 advisory opinions on ads and "only a handful" were cited by Plaintiffs as examples of arguably inconsistent or conflicting decisions. Thus, "in most cases a Rules application to a particular advertisement is plain." (Footnote omitted.) The availability of advisory opinions "bolstered" the constitutionality of the rules by allowing bar members to get assistance "where the marginal applications of the Rules may otherwise be unclear."
Consequently, the court concluded that "[b]ecause [Plaintiffs have] failed to demonstrate that the 'promises results' and 'quality of services' Rules have 'no core,' Hoffman Estates, 455 U.S. at 495 n.7, the Court finds that Bar Rules 4-7.2(c)(2) and 4-7.2(c)(1)(G) are not unconstitutionally vague."
Facial challenge to Rule 4-7.2(c)(3) (manipulative descriptions or portrayals) and Rule 4-7.5(b)(1)(A) (manipulative features in TV and radio ads). The court struck down these rules. The rules do not define "manipulative" or include a standard by which to assess whether an ad is impermissibly manipulative. This means that the rules fail to give bar members adequate notice of what is prohibited and gives the Bar "unbridled discretion" in deciding which ads it will prohibit as manipulative. The court rejected the Bar's attempt to tie the meaning of "manipulative" to securities statutes. Furthermore, "unlike the 'promises results' and 'quality of services' Rules, the availability of advisory opinions does not ameliorate the vagueness problem with 'manipulative.' Because the 'manipulative' Rules lack any 'core' meaning, the availability of 'necessarily arbitrary opinions,' see Harrell [], 608 F.3d at 1264 n.8, does not render the Rules any less vague or restrain the Bar’s discretion in applying them. Indeed, the Bar’s enforcement of these Rules demonstrates their arbitrary application. Although the Bar attempts to explain the inconsistent applications, its explanations do not reveal any particular standard or definition that applies, but instead amount to case-by-case rationalizations without any connection to the language of the Rules."
Facial challenge to the Comment to Rule 4-7.1 (ads should provide only useful, factual information). The court struck down this provision. Again, the rules do not define "useful" or set forth standards for determining whether what is or is not "useful" in an ad. "Because lawyers of common intelligence could easily differ on what constitutes 'useful' information in an attorney advertisement, this provision fails to provide any notice, much less 'fair notice' of what is prohibited to the members of the Florida Bar. See [International Society for Krishna Consciousness of Atlanta v.] Eaves, 601 F.2d [809] at 830-31 [5th Cir. 1979)]."
As-applied challenge to Rule 4-7.2(c)(2) (prohibiting use of statement "Don't Settle for Less Than You Deserve"). The court held that application of this rule to prohibit Plaintiffs from using the slogan "Don't Settle for Less Than You Deserve" was unconstitutional under the facts of the case. (Because this was an as-applied challenge, the court did not have before it the issue of whether the Bar constitutionally could prohibit all quality of service statements.) The Bar failed to satisfy the Central Hudson test (see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)). The Bar presented "no evidence, anecdotal or otherwise, that the phrase has misled the public or tarnished the reputation of the legal profession in the public’s eyes." (Emphasis by court.) The court rejected the Bar's attempt to cite to data purportedly showing generally that TV advertising lowers the public's respect for the legal system.
As-applied challenge to Rule 4-7.5(b)(1)(C) (prohibiting TV and radio ads with any background sound other than instrumental music). The court held that application of this rule as it would apply to Plaintiffs' proposed ads was unconstitutional. The court rejected the Bar's contention that this rule must be read in pari materia with Rule 4-7.2(c)(16), which prohibits sounds in ads that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener." Instead, the court stated that "the meaning of Rule 4-7.5(b)(1)(C) is plain – the Rule categorically bans all background sounds in television and radio advertisements except instrumental music."
The Bar failed to satisfy the third prong of the Central Hudson test because it did not directly and materially advance the substantial governmental interests of preventing the public from being misled and preventing the erosion of public confidence in the judicial system. The Bar's reliance on a 1989 study of the effects of lawyer advertising on public opinion was unavailing, as it "falls far short of the type of 'concrete evidence' necessary to justify the Bar’s categorical restriction on background sounds. See Mason [v. Florida Bar], 208 F.3d [952] at 958 [(11th Cir. 2000)]." Harrell v. Florida Bar, ___ F.Supp.2d ___ (M.D.Fla., No. 3:08-cv-15-J-34 TEM, 9/30/2011).
Supreme Court suspends lawyer who sent non-complying direct mail letter containing material false statements. [Added 9/7/11] -- Florida Bar v. Letwin, 70 So.3d 578 (Fla. 2011).
Florida Bar asks Florida Supreme Court to approve major changes to lawyer advertising rules. [Added 7/6/11] On July 5, 2011, the Florida Bar filed a petition asking the Florida Supreme Court to approve a comprehensive overhaul of the rules governing lawyer advertising. The proposed rules, including their numbering and arrangement, represent a substantial revision of the rules that have applied to lawyer advertising and solicitation in recent years. Any changes to the rules must be approved by the Court.
Click here to view the Bar's petition. Click here to view the full text of the proposed rules. Click here to see the proposed rules with the Bar's explanatory notes. A sunEthics.com summary of some of the significant features of the proposed rules appears below.
The new rules and their titles are: Rule 4-7.1 (Application of Rules); 4-7.2 (Required Content); 4-7.3 (Deceptive and Inherently Misleading Advertisements); 4-7.4 (Potentially Misleading Advertisements); 4-7.5 (Unduly Manipulative or Intrusive Advertisements); 4-7.6 (Presumptively Valid Content); 4-7.7 (Payment for Advertising and Promotion); 4-7.8 (Direct Contact with Prospective Clients); 4-7.9 (Evaluation of Advertisements); 4-7.10 (Exemptions From the Filing and Review Requirement); 4-7.11 (Firm Names and Letterhead); 4-7.12 (Lawyer Referral Services); and 4-7.13 (Lawyer Directory).
Proposed Rule 4-7.1 (Application of Rules). The proposed rules apply to "all forms of communication in any print or electronic forum." This includes "websites, social networking, and video sharing media." Regarding websites of multistate law firms, the proposed Comment explains that the Florida advertising rules do not apply "to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida."
The proposed rules apply to all lawyers, whether admitted in Florida or not, "who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents." Regarding ads in "national media" (e.g., cable television), the proposed rules do not apply "if the disclaimer 'cases not accepted in Florida' is plainly noted in the advertisement."
Proposed Rule 4-7.2 (Required Content). All ads must contain the name of the lawyer, law firm, lawyer referral service, or lawyer directory responsible for the ad. If the cases being advertised for will be referred to another lawyer or firm, the ad must so state. Any required information must appear in each language used in the ad. (These requirements are in the current rules.)
Proposed Rule 4-7.3 (Deceptive and Inherently Misleading Advertisements). The proposed Rule defines deceptive or inherently misleading ads, and provides a non-exclusive list of deceptive or inherently misleading statements. The list is significant primarily because of what the proposed rule would permit. References to past results are permitted if "objectively verifiable." (The proposed Comment points out that the affected client must give informed consent, even where "some or all of the information a lawyer may wish to advertise is in the public record.") Comparisons or characterizations of the advertiser's "skills, experience, reputation or record" are permitted if "objectively verifiable." The current rule requiring all non-lawyer spokespersons to be identified as such in ads is replaced by a rule requiring a "prominently displayed" notice ("Not an employee or member of law firm") where the person's voice or image "creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee" of the advertiser. Ads containing "dramatizations" of actual or fictitious events must contain a "prominently displayed" disclaimer, and a disclaimer must be "prominently displayed" when an actor "acting as a spokesperson" for the advertiser portrays someone "purporting to be engaged in a particular profession or occupation" (e.g., doctor, lawyer, police officer). For the first time in many years, the proposed rule generally allows the use of testimonials but does not permit testimonials: "(A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results." The proposed Comment defines "testimonial" as "a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation." Finally, ads may not contain an advertising lawyer's "judicial, executive or legislative branch title with or without modifiers." (The proposed Comment clarifies that "an accurate representation of one’s judicial, executive, or legislative experience is permitted in reference to background and experience in bios, curriculum vitae and resumes.").
Proposed Rule 4-7.4 (Potentially Misleading Advertisements). The proposed rules, for the first time, explicitly regulate "potentially misleading" ads. The proposed Rule provides a non-exclusive list of potentially misleading ads that includes: -- Ads subject to "varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context;" -- Ads "that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;" and -- Ads with references to "membership in or recognition by an entity that purports to base such membership or organization on a lawyer’s ability or skill unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria" and draws from "a reasonable cross-section of the legal community the entity purports to cover." The proposed Rule also provides that an ad may be rendered permissible through the inclusion of "information or statements that adequately clarify the potentially misleading issue."
Proposed Rule 4-7.5 (Unduly Manipulative or Intrusive Advertisements). The proposed Rule prohibits ads that are "unduly manipulative or intrusive." An ad is "unduly manipulative" if it: (a) has features designed to "solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client;" (b) uses the voice of image of a "celebrity" (except a local announcer who regularly records ads and does not endorse the advertiser); or (c) "offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising" (except for discounted fees). Neither the proposed Rule nor its Comment attempt to define what would be considered "intrusive."
Proposed Rule 4-7.6 (Presumptively Valid Content). The proposed Rules lists certain information that is "presumed not to violate" the advertising rules. The items listed are almost identical that those contained in the current rules. One notable addition allows the inclusion of membership in and positions held in any state bar (the current rule is limited to Florida Bar membership and positions held).
Proposed Rule 4-7.7 (Payment for Advertising and Promotion). The proposed Rule continues the prohibitions against (a) a lawyer paying the costs of ads by a lawyer not in the same firm (the Comment notes that firms may advertise jointly if all required information is included) and (b) a lawyer giving anything of value in exchange for a recommendation of the lawyer's services. A new prohibition is added as subdivision (c): "A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer."
Proposed Rule 4-7.8 (Direct Contact with Prospective Clients). The proposed Rule continues to prohibit most in-person solicitation. The rules governing direct mail (including email) communication with prospective clients would be extended to all written communications seeking professional employment (not just "unsolicited" ones as provided for in the current rule). Most of the specific requirements for direct mail communications remain unchanged. The most significant change is that the word "Advertisement" must appear on each page of the communication (instead of only the first page).
Proposed Rule 4-7.9 (Evaluation of Advertisements). The proposed Rule requires that all ads (except websites) be filed with the Bar 20 days in advance of their first use. (The current rule requires pre-filing of only television and radio ads.) The proposed Rule prohibits the filing of "an entire website" for review. A lawyer, however, "may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website," even though these are not required to be filed. The current rule mandates that the Bar's finding that an ad is in compliance is binding on the Bar in a grievance proceeding (absent a misrepresentation not apparent from the face of the ad). Significantly, the proposed Rule would allow the Bar to retract a finding of compliance at its pleasure, even when the underlying rules have not changed. Continued dissemination of the no-longer-approved ad would subject the advertiser to discipline. The proposed rule creates a limited safe harbor "take-down" period for websites. A lawyer is subject to discipline for a non-complying website "only after 15 days have elapsed since the date" that the Bar sent a notice of noncompliance to the lawyer's official Bar address. The ad review fees remain at $150 per timely-filed ad and $250 per late-filed ad.
Proposed Rule 4-7.10 (Exemptions From the Filing and Review Requirement). The exemptions from the filing-and-review requirement remain substantially unchanged under the proposed Rule. It specifies that "a written or recorded communication requested by a prospective client" is exempt. Although the communication itself is exempt from filing, the content of any such requested communication is subject to the advertising rules. (This is a change from the current rule, which provides that the ad rules do not apply to requested information.) Additionally, the proposed rule provides that websites are not required to be filed for review.
Proposed Rule 4-7.11 (Firm Names and Letterhead). The proposed Rule leaves the standards governing firm names and letterhead unchanged. The proposed Comment adds that a sole practitioner's use of "and Associates," "Group," or "Team" is impermissible because it "implies that more than one lawyer is employed in the advertised firm and is therefore misleading."
Proposed Rule 4-7.12 (Lawyer Referral Services). The proposed rule imposes a new requirement on the operation and advertising of lawyer referral services by mandating that all lawyer referral service ads affirmatively state "that lawyers who accept referrals from it pay to participate in the lawyer referral service." (This is in addition to the affirmative "lawyer referral service" disclosure that currently is required.)
Proposed Rule 4-7.13 (Lawyer Directory). The proposed Rule recognizes, for the first time, a "lawyer directory." This is defined as: "[A]ny person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers." Traditional telephone directories, and voluntary bar associations that list members on a website or in a publication, do not come within the definition. Many of the regulations that apply to lawyer referral service ads also apply to "lawyer directories;" notable exceptions are: there is no requirement for lawyers listed in a "lawyer directory" to be covered by malpractice insurance; and there is no requirement that the "lawyer directory" provide the Florida Bar with a list of participating lawyers.
Supreme Court denies the Bar's motion to dismiss the website advertising rules case and stays further proceedings until July 5, 2011. [Added 3/7/10]
The Florida Bar previously filed a motion to dismiss the pending case (Fla. Sup. Ct. case no. SC10-1014) in which the Bar asked for changes to the rule governing law and law firm websites. The reason behind the dismissal request was the comprehensive re-write of the lawyer advertising rules that is being conducted by the Florida Bar Board of Governors.
On February 28, 2011, the Florida Supreme Court denied the Bar's motion to dismiss without prejudice. The Court's order stated in part: "On the Court's own motion, the proceedings in this case are hereby stayed until July 5, 2011, by which time The Florida Bar has indicated that it will file a petition, with proposed rule amendments, recommending a comprehensive revision of the Rules Regulating The Florida Bar pertaining to attorney advertising."
Background information – Supreme Court delays implementation of new website advertising rules; at Court's direction, Florida Bar asks for changes to those rules. [Added 6/8/10] By its order dated June 10, 2010, the Florida Supreme Court granted the Florida Bar's emergency motion for a stay and delayed the implementation of the new website advertising rules. The rules will now take effect "90 days from the date of the Court's ruling on In re: Amendments to the Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, SC10-1014. For more information, see the Florida Bar's website or watch sunEthics.com for updates (rule changes are tracked on the sunEthics "Proposed Changes to Florida Bar Rules" page).
The Florida Supreme Court previously approved substantial revisions to the rule governing lawyer and law firm websites. This new version of Rule 4-7.6. Click here for a summary of the changes.
Following up on the Court's action, the Florida Bar's Standing Committee on Advertising adopted "Guidelines for Lawyer and Law Firm Websites" to help lawyers bring their websites into compliance with the new rule. The Bar submitted these Guidelines to the Supreme Court for informational purposes. The Court responded by informing the Bar that the Guidelines were more than an "interpretation" of the rules and directed the Bar to submit to the Court proposed rule changes that would be consistent with the approach described in the Guidelines.
The Bar has filed the proposed changes with the Court. The proposed rule would establish would spell out procedures that, if followed, would have the effect of turning a website or a portion of it into information “requested” by viewer. The "requested" information would be exempt from the advertising rules, thus allowing inclusion of items such as testimonials, statements characterizing the quality of services, and listings of past results. Click here for an informative story in the June 15, 2010, issue of the Florida Bar News.
Florida Bar asks Florida Supreme Court to dismiss pending case regarding changes to website advertising rules. [Added 10/29/10]
The Florida Bar has filed a motion to dismiss the pending case in which the Bar asked for changes to the rule governing law and law firm websites. (Florida Supreme Court Case No. SC10-1014.) The motion also seeks dismissal of a pending case regarding rule changes that could affect the way former judges refer to themselves in ads. (Florida Supreme Court Case No. SC10-437.)
The reason behind the dismissal request is the comprehensive re-write of the lawyer advertising rules that is being conducted by the Florida Bar Board of Governors.
Supreme Court denies rehearing for lawyer disciplined for using trade name "Legal Experts." [Added 8/31/10] -- Florida Bar v. Doane, 43 So.3d 640 (Fla. 2010).
Supreme Court amends rules regarding lawyer-to-lawyer and lawyer-to-client communications. [Added 7/9/10]
Ruling on a request from the Florida Bar, the Supreme Court adopted rules that expressly exempt lawyer-to-lawyer and lawyer-to-client communications from the Bar's advertising rules. These communications remain subject to other Rules of Professional Conduct, including the conflict rules and the rule against conduct involving dishonesty, fraud, deceit, or misrepresentation.
New Rule 4-7.1(e) provides: "Subchapter 4-7 shall not apply to communications between lawyers." This was the text as proposed by the Bar.
In adopting the rule regarding communications with current or former clients, the Court added language on its own motion to emphasize that this rule may not be used to circumvent other advertising rules that should apply. The Court's language also specifies that, for purposes of this rule, "former clients" of a lawyer do not include a public entity's clients or former clients. New Rule 4-7.1(g) provides: "Subchapter 4-7 shall not apply to communications between a lawyer and that lawyer’s own current and former clients. However, a lawyer shall not provide advertising materials to the lawyer’s own current or former clients that the lawyer received from other attorneys – a lawyer shall not serve as a conduit for other attorneys’ advertising. Further, as used in this rule, the term 'former clients' does not include the clients or former clients of a public entity."
The Court cautioned: "One of the purposes of the advertising rules is to protect members of the public from false or misleading advertisements. With this purpose in mind, we state that lawyers are prohibited from using these two exceptions to evade the requirements of the advertising rules. A lawyer shall not provide advertising materials to the lawyer’s own current or former clients that the lawyer received from other attorneys. This shall include lawyer-to-lawyer newsletters and brochures, if the attorney who supplied those materials is prohibited from directly distributing them to the general public."
The Court also ordered the Florida Bar to "undertake a comprehensive and contemporary study of marketing," noting that "it has become apparent that there are differences between advertising and marketing."
The new rules and revised Comment to Rule 4-7.1 are effective on October 1, 2010. In re: Amendments to Rule Regulating The Florida Bar 4-7.1 – Lawyer-to-Lawyer and Lawyer-to-Client Communications, 41 So.3d 176 (Fla. 2010).
Eleventh Circuit reverses summary judgment and allows challenges to some lawyer advertising rules to go forward. [Added 6/18/10]
A Jacksonville lawyer, William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., filed suit against the Florida Bar in the U.S. District Court for the Middle District of Florida. The suit challenged certain lawyer advertising rules and sought declaratory and injunctive relief on the grounds that the rules violated the First and Fourteenth Amendments to the U.S. Constitution. The court granted the Bar's motion for summary judgment. The plaintiffs appealed. The Eleventh Circuit affirmed in part, reversed in part, and remanded. The court summarized its decision: "After thorough review, we conclude that Harrell’s facial vagueness challenge is justiciable with respect to five of the nine challenged rules. [Those 5 rules are: Florida Rule of Professional Conduct 4-7.2(c)(1)(G) (prohibits statements that 'promise results'); Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); Rule 4-7.2(c)(3) (prohibits 'visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events that are deceptive, misleading, manipulative, or likely to confuse the viewer'); Rule 4-7.5(b)(1)(A) (prohibits TV and radio ads containing 'any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer'); and Comment to Rule 4-7.1 ('Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner').] As to all but one of the nine rules, however, we agree with the district court that Harrell’s as-applied First Amendment challenge is not ripe, and therefore is nonjusticiable. [The one rule for which the as-applied challenge is ripe is Rule 4-7.5(b)(1)(C) (prohibits TV and radio ads containing 'any background sound other than instrumental music').] Turning to the question of Harrell’s slogan, we agree with Harrell that his challenge to the Bar’s rejection of 'Don’t settle for less than you deserve' is not moot. Finally, we conclude on the merits that the Florida Bar’s twenty-day prefiling rule is constitutional." Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010).
Supreme Court delays implementation of new website advertising rules. At Court's direction, Florida Bar asks for changes to those rules. [Added 6/10/10] By its order dated June 10, 2010, the Florida Supreme Court has delayed the implementation of the new website advertising rules. The rules will now take effect "90 days from the date of the Court's ruling on In re: Amendments to the Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, SC10-1014. For more information, see the Florida Bar's website or watch sunEthics.com for updates.
The Florida Supreme Court previously approved substantial revisions to the rule governing lawyer and law firm websites. This new version of Rule 4-7.6 takes effect on July 1, 2010. Following up on the Court's action, the Florida Bar's Standing Committee on Advertising adopted "Guidelines for Lawyer and Law Firm Websites" to help lawyers bring their websites into compliance with the new rule. The Bar submitted these Guidelines to the Supreme Court for informational purposes. The Court responded by informing the Bar that the Guidelines were more than an "interpretation" of the rules and directed the Bar to submit to the Court proposed rule changes that would be consistent with the approach described in the Guidelines. The Bar has filed the proposed rule changes with the Court. Additionally, the Bar has asked the Court to delay implementation of the previously-approved changes. Click here for an informative story in the June 15, 2010, issue of the Florida Bar News.
Supreme Court disciplines lawyer for using firm name containing term "expert." [Added 5/21/10] -- Florida Bar v. Doane, 35 Fla.L.Weekly S278 (Fla., No. SC08-1278, 5/20/2010), 2010 WL 1997127.
Supreme Court amends rules governing mediator advertising and marketing practices. [Added 4/2/10] -- In re: Amendments to the Florida Rules for Certified and Court-Appointed Mediators, 32 So.3d 611 (Fla. 2010).
Supreme Court dramatically changes rules governing lawyers' websites. [Added 11/20/09]
In an opinion issued in response to the Florida Bar's motion for rehearing, the Florida Supreme Court amended the rules governing lawyer and law firm websites. Formerly websites were considered "information upon request" and therefore were exempt from the lawyer advertising rules. The new amendments dramatically change the regulation of lawyers' websites in Florida.
Consistent with views expressed by members of the Court at oral argument and in the Court's prior opinion, the Court amended Rule 4-7.6 ("Computer-Accessed Communications) in several respects. The most significant change was to make lawyer websites subject to all of the substantive lawyer advertising rules, with one exception (websites will not be required to be filed with the Bar for review). The Court explained: "[T]he purpose of rule 4-7.6 is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers’ abilities to provide information about themselves to the public. In light of this purpose, the Court intends that websites be subject to all of the substantive advertising regulations applicable to other advertising media (except the filing requirement)." (Footnote omitted.)
The Court's action means that lawyer and law firm website may no longer include any references to past results or successes, testimonials, or statements characterizing the quality of the lawyer's services. See Rule 4-7.2.
Websites must still "disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law." The rule, however, does not mandate where on the website this disclosure must appear; thus, it may appear on the home page or on an interior page or pages.
The Court also amended portions of Rule 4-7.6 concerning direct email communications to prospective clients and Internet advertisements.
Regarding email communications to prospective clients, the rule as amended "would clarify that email communications are subject to the rules that regulate advertisements by traditional mail." Among other things, email communications must now: (1) include a statement of the advertising lawyers' qualifications ("background, training and experience"): (2) inform the recipient if a lawyer other than the advertising lawyer will actually handle the matter; and (3) begin the subject line with the words "LEGAL ADVERTISEMENT."
The final amendment clarifies that "[a]ll unsolicited computer-accessed communications concerning a lawyer's or law firm's services not addressed by other provisions of [Rule 4-7.6] are subject to the requirements of rule 4-7.2" (the general advertising rule).
The amendments were to become effective on January 1, 2010. In re: Amendments to the Rules Regulating The Florida Bar -- Rule 4-7.6, Computer Accessed Communications), 24 So.3d 172 (Fla. 2009) (revised opinion).
NOTE: In response to a request from the Florida Bar, the Florida Supreme Court ordered that the changes to the advertising rule governing lawyer and law firm websites (Rule 4-7.6) would become effective on July 1, 2010, rather than the originally announced date of January 1.
Florida Bar asks Florida Supreme Court to expressly exempt from advertising rules communications between lawyers, and lawyers’ communications with current and former clients. [Added 4/30/09]
In January 2009 the Florida Bar filed a Report asking the Florida Supreme Court to amend Rule 4-7.1 to expressly exempt from the advertising rules lawyer-to-lawyer communication and lawyer-to-client communication. Proposed Rule 4-7.1(e) would state: "Subchapter 4-7 would not apply to communications between lawyers." Proposed Rule 4-7.1(g) would state: "Subchapter 4-7 would not apply to communications between a lawyer and that lawyer’s own current and former clients."]
The Bar asserted that these proposals were unnecessary, and backed up its position with survey of Florida Bar members. The Bar also argued that the U.S. Supreme Court’s lawyer advertising cases provided support for the proposals: "The main state interests that the bar has advanced in regulating lawyer advertising are as follows: protecting the public from misleading information; encouraging lawyers to provide useful, relevant information in their advertisements; protecting the privacy of the public against invasive advertising by lawyers; protecting the vulnerable public from undue influence and overreaching by a trained advocate; and protecting the integrity of the justice system by preventing the dissemination of advertisements that tend to promote disrespect for lawyers by the public and by extension, disrespect for the justice system. Those purposes are not met by applying lawyer advertising regulations to communications between lawyers. Therefore, the bar’s position is that the regulation of communications between lawyers is not a reasonable fit to the rationale of the bar in propounding lawyer advertising regulations."
(Commercial speech, such as lawyer advertising, may constitutionally be regulated only to protect a substantial state interest and only where that interest is directly advanced by the regulation and the regulation is no more extensive than necessary to serve that interest. See Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 100 S.Ct. 2342 (1980).)
Federal suit challenging Florida Bar lawyer advertising rules results in summary judgment being granted for Bar. [Added 4/8/09]
A Jacksonville lawyer, William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., filed suit against the Florida Bar in the U.S. District Court for the Middle District of Florida. The suit sought declaratory and injunctive relief on the grounds that the challenged lawyer advertising rules violate the First and Fourteenth Amendments to the U.S. Constitution. The suit sought to have a number of rules declared unconstitutional, including: Florida Rule of Professional Conduct 4-7.1, (requires ads to provide only "useful, factual information presented in a nonsensational manner"); Rule 4-7.2(c)(1)(D) (prohibits statements that are "unsubstantiated in fact"); Rule 4-7.2(c)(1)(G) (prohibits statements that "promise results"); Rule 4-7.2(c)(1)(I) (prohibits any communication that "compares the lawyer's services with other lawyer's services"); Rule 4-7.2(c)(2) (prohibits statements "describing or characterizing the quality of the lawyer's services"); Rule 4-7.2(c)(3) (prohibits "visual and verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events" that are "manipulative, or likely to confuse the viewer"); and Rule 4-7.7(a)(1) (requiring filing of TV and radio ads prior to dissemination).
The court granted the Bar's motion for summary judgment.
The court concluded that the claims challenging the rules based on the current advertising campaign (using the slogan "Don't settle for less than you deserve" of Harrell and his law firm were moot. The Bar's Board of Governors had ruled that the ads were permissible, and Rule 4-7.7(a)(2)(F) provides that "[a] finding of compliance by The Florida Bar shall be binding in a grievance proceeding, unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement." The court further concluded that the plaintiffs lacked standing to challenge the constitutionality of any of the rules (except the pre-screening requirement). Plaintiffs "failed to establish an injury-in-fact based on the proposed advertisements" and, in any event, failed to show that the alleged injury was "fairly traceable to the challenge[d] conduct." Moreover, the plaintiffs did not provide any "evidence showing that their alleged injury likely would be redressed by granting the relief requested." Plaintiff Public Citizen also failed to establish associational standing.
Finally, the court concluded that plaintiffs did have standing to challenge the pre-screening requirement for TV and radio ads imposed by Rule 4-7.7(a). "[A]s Plaintiffs have established the existence of subject matter jurisdiction with respect to their challenge to Rule 4-7.7(a), the Court must turn its attention there." Plaintiffs contended that the rule was an unconstitutional prior restraint. The Court disagreed, finding that the rule was not a prior restraint on speech and granted summary judgment for the Bar on this claim.
For a complimentary copy of the court's order, email your request to Tim Chinaris at tchinaris@gmail.com.
Supreme Court rejects Florida Bar's proposed changes to advertising rules governing lawyers' websites. [Added 3/2/09]
In February 2008 the Florida Bar petitioned the Florida Supreme Court to amend the rules regulating lawyers' websites. Changes proposed by the Bar's to current Rule 4-7.6 included:
-- Homepages of lawyers' websites would be subject to the requirements of Rule 4-7.2 (the general lawyer advertising rule);
-- A lawyer's website would not be required to disclose all jurisdictions in which the lawyer is licensed to practice;
-- Interior pages of lawyers' websites would be subject to Rule 4-7.2, except that lawyers could include truthful and factually verifiable testimonials, information about past results obtained, and descriptions or characterizations of the quality of the lawyers' services, provided that these items are accompanied by appropriate disclaimers;
-- Email messages to prospective clients would continue to be governed by Rule 4-7.4 and would have to contain a subject line that begins with the words "LEGAL ADVERTISEMENT;"
-- If not addressed by other portions of Rule 4-7.6, all unsolicited computer-accessed communications concerning lawyers or their services (e.g., banner ads, pop-up ads) would be subject to Rule 4-7.2; and
-- Lawyers' websites would not be required to be filed with the Bar for review. In an opinion joined by 5 of the 7 justices, the Court rejected the Bar's proposed amendments to Rule 4-7.6.
The Court observed that the Bar's proposals sought to establish an "intermediate" regulatory position "between full application of all lawyer advertising rules and no regulation of websites under the lawyer advertising rules" by requiring the homepage to comply with all substantive advertising regulations while the interior pages were essentially treated as information provided to prospective clients upon request. The Court disagreed: "In contrast to the Bar’s arguments, we find that the proposed amendments are not sufficient to make material behind the homepage fall under the concept of information 'upon request' (which is exempted from regulation by subchapter 4-7, pursuant to rule 4-7.1(f)). We recognize, however, that sufficient changes could be made to the rules regulating websites to make pages behind the homepage constitute material 'upon request.' For example, a website could require users to complete two steps on webpages before they could access result or testimonial information. First, a user could be required to complete a 'Request' page with their name, address, and phone number (all required fields). Second, a disclaimer page could appear with the bottom of the page requiring a click on a button to indicate that the user had read the disclaimer (and an option for the user to discontinue the request for information). Only after the user navigated through these two pages would the user be able to obtain the additional information. This process would make obtaining information from a website similar to obtaining information 'upon request' from a lawyer, when a potential client picks up a phone and calls a lawyer to ask for information, and then is mailed a DVD or brochure by the lawyer with the requested information."
The Court also responded to the Bar's concerns about the "significant difficulties in regulating websites" due to considerations such as "the fact that websites are not static" and the fact that websites "can present voluminous amounts of information, making the Bar's review of that information an overwhelming task." The Court recommended what it viewed as a solution: "[W]e we suggest that the Bar consider requiring attorneys to certify their compliance with the computer-accessed communications rules. This required certification could be included on Bar members’ annual dues statements, similar to the required certification of compliance with the trust accounting rules. See R. Regulating Fla. Bar 5-1.2(c)(5) (lawyers shall annually file with the Bar a trust accounting certificate showing compliance with the trust accounting rules). If the Bar’s general investigations of websites reveal an attorney whose website does not comply with the advertising rules, the Bar could then proceed with a disciplinary investigation of the attorney, in a manner similar to when the Bar discovers violations of the trust accounting rules."
The Court also rejected the Bar's proposal to eliminate the current requirement that websites disclose all jurisdictions where the lawyer is licensed to practice. The Court stated that "the existing requirement in rule 4-7.6 is necessary to protect members of the public who might find an attorney through computer-accessed advertising, and the requirement does not unduly burden the advertising attorney. Because a person can be located almost anywhere in the world when she finds the webpage of an advertising attorney, the rules should continue to require the attorney’s homepage to clearly state the jurisdictions in which the attorney is licensed to practice."
Finally, the majority opinion agreed with the concurring and dissenting opinions that the use of testimonials "should be further considered by The Florida Bar" and, by separate letter, referred a request to the Bar to "study and define the term 'testimonials'."
Justice Pariente, joined by Justice Labarga, authored a concurring opinion in which she commented that "lawyer advertising has changed the face of the legal profession and that change has not been a positive one." She agreed with the majority's suggestion that the Bar fashion a rule that would require anyone seeking material beyond the homepage "must complete at least two steps (or two clicks of the mouse) until information appears that would be deemed the equivalent of 'information upon request'." She also expressed the view that the use of testimonials could be "troubling" and have a "potential for abuse and . . . for further denigrating the justice system and this profession in the minds of the public."
Justice Canady wrote a concurring opinion in which he also questioned the use of testimonials, as well as statements regarding the use of past results. He pointed out that "[t]he provisions of rule 4-7.2(c)(1) suggest that testimonials and statements regarding results obtained may by their very nature run afoul of the general prohibition in rule 4-8.4(c) of 'dishonesty, fraud, deceit, or misrepresentation,' and thus would not be permissible even as information provided at the request of a prospective client."
Chief Justice Quince concurred in part and dissented in part. "I concur in the majority’s decision to not adopt the proposed amendments. However, I disagree with that portion of the opinion that suggest that if a user has to navigate at least two pages that makes the rest of the website 'upon request' and therefore the rest of the website would not be subject to regulation by the Bar. . . . It seems incongruous to me that we are considering a loosening of the advertisement rules and the allowance of more self-lauding statements, i.e., past results and testimonials, in a forum that the Bar admits it cannot adequately review and which changes frequently. I would therefore apply the advertising rules to websites." In re: Amendments to the Rules Regulating The Florida Bar -- Rule 4-7.6, Computer Accessed Communications, __ So.3d ___, 34 Fla.L.Weekly S261 (Fla., No. SC08-1181, 2/27/09), 2009 WL 485105. NOTE: The Court's original opinion was withdrawn on rehearing and replaced on 11/29/2009.
UPL for lawyer licensed only in New York to open Florida office and advertise for "N.Y. Legal Matters Only" or "Federal Administrative Law" [Added 1/8/08] -- Gould v. Florida Bar (11th Cir., No. 06-15142, Dec 12, 2007) (not selected for publication in the Federal Reporter), 2007 WL 4403556 , affirming Gould v. Harkness, 407 F.Supp.2d 1357 (S.D.Fla. 2006).
Federal court strikes down many of New York's new lawyer advertising rules as unconstitutional under First Amendment [Added 7/26/07] -- Alexander v. Cahill, (N.D.N.Y., No. 5:07-CV-117 (FJS/GHL), 7/23/2007) (not reported), 2007 WL 2120024.
Nevada amends lawyer advertising rules to require, inter alia, that ads be submitted to State Bar for review. [Added 5/8/07] -- See Nevada Rule of Professional Conduct 7.2A.
Federal Trade Commission staff criticizes Florida's proposed regulations governing lawyer websites and other computer-accessed communications. [Added 3/24/07] -- FTC staff's comments state in part: "As a general principle, it is important to protect consumers of legal services from deceptive and misleading advertising. The Proposed Rule, however, unnecessarily restricts truthful and non-misleading advertising, may result in higher prices paid for legal services and less consumer choice." The comments also criticize features of Florida's existing regulations governing lawyer advertising, including the ban on testimonials and the requirement that many ads be filed with the Bar for review.
FLORIDA SUPREME COURT AMENDS LAWYER ADVERTISING RULES EFFECTIVE 1/1/2007; PRE-SCREENING OF TV AND RADIO ADS NOW REQUIRED [Added 11/3/06]
PLEASE NOTE this IMPORTANT UPDATE: On November 17, 2006, the Florida Bar filed with the Florida Supreme Court a Motion for Reconsideration in this matter. Essentially, the Bar seeks clarification as to the effect of several of the Court's decisions. Among other things, in light of the rules as amended by the Court the Bar has asked the Court: whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request. On December 20, 2008, the Court denied the Bar's Motion for Reconsideration but issued a revised opinion. In re: Amendments to Rules Regulating The Florida Bar -- Advertising Rules, 971 So.2d 763 (Fla. 2007) (revised opinion).
The Florida Supreme Court has acted on the Florida Bar's petition to amend the lawyer advertising rules in a number of respects. The amendments become effective on January 1, 2007. Among the changes requested by the Bar and approved by the Court are the following: television and radio ads must be pre-filed with the Bar at least 15 days before airing (new Rule 4-7.7(a)(1)(A));out-of-state lawyers who practice in Florida are expressly subject to Florida's advertising rules (new Rule 4-7.1(c));a Florida lawyer's communications to the lawyer's family members are exempt from the advertising rules (new Rule 4-7.1(e));communications by a Florida lawyer to prospective clients that are made at a prospective client's request are exempt from the advertising rules (new Rule 4-7.1(f));the ban on any reference to "past successes or results obtained" has been replaced by a prohibition on communications that "promise[] results" (new Rule 4-7.2(c)(1)(G));visuals that are likely to "confuse" a viewer are prohibited (new Rule 4-7.2(c)(3));every ad for a lawyer referral service must affirmatively disclose that fact (new Rule 4-7.10(1)(10));the types of information that may be included in "public services announcements" (which are exempt from the filing-and-review requirement) has been substantially expanded (new Rule 4-7.8(b) and new Rule 4-7.2(b)(3));the "hiring" disclosure statement previously required in print advertising is no longer required;the rule against "unfair" advertising has been deleted; andadvisory advertising opinions rendered by the Bar finding an ad in compliance are binding on the Bar (rather than merely advisory) in grievance proceedings (new Rule 4-7.7(a)(1)(F), new Rule 4-7.7(a)(2)(F)).
As discussed below, the Court declined to adopt several of the Bar's proposals: The Bar had proposed several changes to the rule governing computer-accessed communications, which include lawyers' websites. The Court declined to adopt these proposals, stating: "[T]he Court notes that the [Bar's] Board [of Governors] has appointed a special committee to review issues regarding websites and Internet communications. The special committee is charged with making recommendations to the Board if appropriate. Thus, it is not efficient or sound for the Court to address the regulation of Internet advertising at this time, while the special committee is studying these very issues. Accordingly, the Court does not adopt the [proposed rule changes]. The Court will consider the regulation of Internet communications when the Bar files the report of the special committee."The Bar proposed that communications directed to other lawyers, and communications directed to a lawyer's current or former clients, be exempt from the advertising rules. In declining to adopt these proposals, the Court stated: "We request further information from the Bar as to why communications between lawyers, and communications with current and former clients, should be exempted from the advertising rules, including any research or evidence supporting such exemptions. We defer adoption of those two exemptions at this time." (The Court also declined to adopt the Bar's proposed definition of "prior professional relationship" contained in the comment to the proposed rule that would have stated that the advertising rules did not apply to certain "prior professional relationships.")
The Bar requested elimination of the requirement that a disclosure be made when a non-lawyer spokesperson is used in a television or radio ad in ads in which it would be apparent from the context of the ad that the person was not a lawyer. The Court rejected this proposal, stating: "In comparison to the proposal, the established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public. Therefore, the Court does not adopt the proposal."
Finally, and perhaps quite significantly, the Court concluded by requesting "that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising." For a rule-by-rule summary prepared by Florida Bar Ethics Counsel Elizabeth Clark Tarbert, click here. As noted above, these amendments become effective on January 1, 2007. In re: Amendments to the Rules Regulating The Florida Bar -- Advertising, ___ So.2d ___, 31 Fla.L.Weekly S767 (Fla., No. SC05-2194, 11/2/2006).
Including law firm logo on outside of targeted direct mail brochure does not violate rule against disclosing nature of recipient's possible legal problem. [Added 9/13/06] -- The Florida Bar v. Gold, 937 So.2d 652 (Fla. 2006).
Information gained through discovery regarding identity of defendant's customers cannon be used by plaintiff to solicit customers to file suits. [Added 6/29/06] -- American Trades Institute of Florida, Inc. v. Sanchez, 932 So.2d 534 (Fla. 3d DCA 2006).
Florida Supreme Court disciplines lawyers who used pit bull logo and "1-800-PIT-BULL" phone number. [Added 11/17/05] -- The Florida Bar v. Pape, 918 So.2d 240 (Fla. 2005).
Lawyer involved in soliciting clients through acts of "paralegal" disbarred rather than suspended. [Added 3/21/05] -- The Florida Bar v. Barrett, 897 So.2d 1269 (Fla. 2005).