Ethics

Firm challenges Florida Bar over website ad limits


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Illustration by Tim Marrs

Attorneys who blog about tort reform, damages caps, insurance companies and other hot-button civil justice issues may find themselves at odds with the Florida Bar and its rules regulating attorney advertisements. According to a recent lawsuit filed in federal court, even President Abraham Lincoln—who advertised his legal services as a lawyer in newspapers in the early 1850s—would run afoul of the state’s rules.

The five named partners of the law firm Searcy Denney Scarola Barnhart & Shipley, who have offices in Tallahassee and West Palm Beach, contend in their federal lawsuit that the Florida attorney advertising rules regulating attorney websites violate First Amendment free speech rights and are too vague. The complaint in Searcy v. Florida Bar claims the amendments to the state’s advertising rules “make it effectively impossible for Florida lawyers to write blogs, to publish their results in past cases, or to participate in social media sites like LinkedIn, without evidence that restricting these activities serves any purpose.”

NEW APPLICATIONS

The new rules, which went into effect in 2013, apply existing attorney ad rules to websites, social networking sites and video sharing sites. Comments to the rule provide: “Websites are subject to the general lawyer advertising requirements … and are treated the same as other advertising media.” Previously, attorney statements on websites generally were outside the purview of attorney ad regulations in Florida.

The Florida Supreme Court approved of the amendments Jan. 31, 2013 in In re Amendments to the Rules Regulating the Florida BarSubchapter 4-7, Lawyer Advertising Rules. Two justices wrote dissenting opinions, questioning the extension of the rules to cover attorney speech on the Internet. Justice Barbara J. Pariente wrote that she would “exempt websites and information upon request from advertising restrictions, and I question whether the entire revamped approach to regulating traditional forms of advertising is a beneficial change.”

She explained that, compared to more traditional attorney ads, such as on billboards or buses, a “lawyer or law firm’s use of a website allows for the conveyance of complete and meaningful information to potential clients, unlike the shorthand versions seen in the other media.”

Justice Charles T. Canady expressed similar reservations in a separate dissenting opinion, writing: “I am particularly concerned about the impact of the application of the advertising rules to lawyer websites.”

The firm filed the lawsuit in December after the Florida Bar determined that the firm’s websites violate the rules. The firm had written to the Florida Bar in an attempt to determine whether it was in substantial compliance with the new rules. The firm chose a sample of 13 individual webpages and submitted them to the bar.

The firm also requested guidance on whether statements on its website complied with the requirement that online statements be “objectively verifiable,” a term not specifically defined in the Florida rules.

The submitted statements include one from a former client who wrote that the firm “is the best law firm anyone can ask for,” one stating that the firm has a “record of significant success for thousands of clients,” and another declaring that the days “when we could trust big corporations … are over.”

‘OBJECTIVELY VERIFIABLE’

The bar determined that the firm’s websites violate the rules, and that many of the submitted statements violate the “objectively verifiable” requirement. The bar said that problematic statements include “government regulation of corporate America’s disregard of consumer safety has been lackadaisical at best” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry.”

The bar also had problems with many subjective descriptions of the firm’s services, such as a statement that the firm was “one of the few law firms in the country to successfully represent innocent victims of dangerous herbal supplements.” The bar said that statements about results in past cases would violate the new rules “unless [they are] objectively verifiable and omit no facts necessary to avoid misleading consumers.”

The firm had appealed the opinion to the Florida Bar’s Standing Committee on Advertising, which affirmed the bar’s decision.

The Florida rules provide: “Deceptive or inherently misleading advertisements include, but are not limited to, advertisements that contain … references to past results unless such information is objectively verifiable.” The suit also challenged another rule, which prohibited lawyers from calling themselves specialists or experts unless they have achieved certain certification programs by the state bar or a national organization whose certification program has been approved by the bar.

“The focus of our case is the objectively verifiable requirement, because it substantially limits what lawyers can say in their advertisements,” says Washington, D.C.-based attorney Gregory Beck, lead attorney for the plaintiffs. “It makes it very hard for lawyers to discuss their past results.”

In its lawsuit, Searcy contends that the rules infringe not only on free speech rights of lawyers but also on consumers’ right to get information and ideas from attorneys. The complaint states that “by barring truthful statements about the firm’s record and services, and by censoring the opinions of former clients, the rules also infringe the First Amendment rights of Florida consumers by depriving them of information that the bar acknowledges is important in selecting a lawyer.”

RANKING RESTRICTIVENESS

Though Florida is one of the states that is most restrictive on attorney advertising, according to Art Garwin, director of the ABA’s Center for Professional Responsibility, Beck takes it a step further. “Florida easily has the most restrictive rules on attorney advertising in the country,” he says. And it “is the first state to enact rules specific to the Internet.”

“The most egregious aspect of the rules is that they apply to lawyers’ political statements on a blog,” Beck says. “The rule requiring that attorney statements be objectively verifiable applies to a lawyer commenting about tort reform and damage caps.”

Francine Walker, the bar’s director of public information and bar services, says that “the Florida Bar does not comment on pending litigation.”

Florida’s rules requiring the lawyer’s full name, the firm, its location, and that a statement is advertising “makes use of Twitter an impossibility because there is a limit of 140 characters,” says Peter Joy, an ethics professor at the Washington University School of Law in St. Louis. “Unless you and your firm have a short name and are in a city such as Miami, I just don’t see how you can use Twitter. Pity the lawyer trying to use Twitter in … Little Harbor on the Hillsboro, Fla.”

Orlando-based Steve Mason—another attorney who has battled the state’s bar over attorney advertising regulations—says “this is an extraordinarily interesting and important case.” In 2000 Mason won in the 11th U.S. Circuit Court of Appeals at Atlanta in a dispute with the Florida Bar over a Yellow Pages ad. “The Internet revolution has changed everything,” he says. “Commercial speech is no longer governed by a few block letters found within the confines of a billboard or Yellow Pages ad.”

Mason says he worries that the extension of the rules to online media will affect far more than purely commercial advertising. “Lawyers, like any other party, have an absolute right to unfettered speech beyond the advertising and commercial speech umbrella,” he says.

“If the bar is correct,” Mason continues, “then any Internet communication by an attorney falls within the scope of the rules and, more important, exposes the lawyer to punishment based upon his or her viewpoint. Times have changed and technology has changed everything. In today’s age the bar’s efforts are a graphic waste in terms of both resources and dollars.”

“I’m very confident in the First Amendment claims,” Beck says. “Our hope is that other states will hesitate to follow Florida’s lead in restricting attorney speech.”

This article originally appeared in the March 2014 issue of the ABA Journal with this headline: “A Net Loss: Firm challenges Florida Bar over website ad limits.”

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