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Florida Supreme Court rejects Florida Bar's proposed changes to advertising rules governing lawyers' websites

    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:

    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.

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