More ads must be reviewed by the Bar
By Gary Blankenship
Beginning May 1, Bar members must submit almost all non-website advertising to the Bar for approval prior to dissemination, under new advertising rules approved by the Florida Supreme Court.
Except for two minor changes, the court in a January 31 ruling approved the Bar-recommended overhaul of ad rules that culminated a two-and-a-half-year effort.
For the first time, the revamped rules allow lawyers to refer to past results in their advertising and characterize their skills and experience as long as it is objectively verifiable. The rules would allow testimonials in certain conditions.
The rules also classify attorney websites as advertising, a stance that produced dissents from Justices Charles Canady and Barbara Pariente. Four justices approved the main opinion, while Justice Peggy Quince partially concurred and partially dissented without an opinion.
“The Florida Supreme Court accepted each and every one of our recommendations for rewriting and restructuring of the rules. We’re very pleased,” Bar Board of Governors member Carl Schwait told the board when it met the day after the court ruled.
The two alterations were a renumbering of the rules by the court and a change to a section on how former and retired judges could use their former titles. Schwait said the court’s change is an improvement in carrying out the Bar’s intent for that rule.
The rewrite was intended to provide clearer guidance to advertising lawyers, he said, and balance consumer protection and First Amendment concerns.
One major change was requiring all ads, except websites, containing more than basic “safe harbor” information to be filed along with a $150 review fee with the Bar at least 20 days before the initial broadcast or publication. Under the old rules, only radio and TV ads had to be filed before dissemination.
Much of the oral argument, when the court considered the rules, focused on the “objectively verifiable” standard for referring to past results and when characterizing skills. Opponents argued the term was too vague and would lead lawyers to be overly cautious in their ads.
In its opinion, the court disagreed.
“If the attorney can show, by objective facts, that the statement is true, then he has presented an objectively verifiable statement in the advertisement,” the court said.
“On the other hand, making a subjective statement, such as ‘the best trial lawyer in Florida,’ is a misleading statement that fails to meet the requirement, because it is neither objective nor verifiable. The advertising statement must be supported by verifiable facts.”
The court also rejected arguments the Bar, in a grievance, could prove an ad claim was not objectively verifiable without ever consulting with or considering statements or evidence from the affected lawyer.
“This argument is misguided,” the court said. “The attorney and the Bar counsel could confer about the statement in question and discuss whether there are objective facts which show the statement is true. Also, if the advertising statement eventually results in a disciplinary proceeding, the Bar has the burden of proving that the statement is false or not objectively verifiable. The attorney would have an opportunity to defend him or herself, provide supporting facts, and present arguments in the disciplinary proceeding. Discipline cannot be imposed unless the Bar carries its burden.”
In her dissent, Justice Pariente said the Bar should have proposed stronger oversight of traditional advertising by TV, radio, billboards, and print media, and lesser restrictions on websites and information provided at the request of clients.
Justice Canady, in his dissent, said the new rules are too restrictive and don’t sufficiently address First Amendment concerns and “prospective clients’ interest in having unimpeded access to information that they consider useful.
“I am particularly concerned about the impact of the application of the advertising rules to lawyer websites and restrictions concerning ‘unduly manipulative or intrusive advertisements [new rule 4-7.15],’” Canady added.
Those are defined in the rule as ads that appeal to a prospective client’s emotions rather than providing information for a “rational evaluation” of the lawyer’s abilities, use an authority figure or actor portraying an authority figure to recommend or endorse a lawyer, or offering an economic incentive, other than a discounted or special fee, to hire the lawyer.
Pariente wrote, “In my view, the potential harms and dangers presented by traditional advertising require closer oversight, whereas the inclusion of lawyers’ websites and information upon request [of a potential client] as part of the lawyer advertising restrictions is unnecessary and has the potential to result in a chilling effect. For these reasons, I 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.”
Even if exempted, she noted, Bar rules prohibiting the use of false or misleading information will still govern websites and information provided at the request of a client.
The issue of the use of titles by former judges — or other former legislative or executive branch officials — came as part of new Rule 4-7.13, which delineates ads presumed to be misleading.
“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,” the court said. “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.’”
Aside from manipulative and intrusive ads, the new rules also ban “deceptive and inherently misleading” ads and “potentially misleading” ads and provide guidance and examples of both. For example, an ad would be deceptive and inherently misleading, among other things, if it made a claim “that can reasonably be interpreted by a prospective client as a prediction or guaranty of success or specific results.”
Ads must include the name of the responsible lawyer or law firm and a location of at least one “bona fide” office.
With the revisions, more than television and radio ads must be submitted to the Bar for review before publication. Under the new rules, “any lawyer who advertises services shall file with The Florida Bar a copy of each advertisement at least 20 days prior to the lawyer’s first dissemination of the advertisement.” The lawyer must also pay a $150 review fee. Any ad not filed at least 20 days in advance of use will owe a late fee of $250.
The only exceptions to the filing requirement are ads that contain only “safe harbor” information as delineated in Rule 4-7.16; websites; listings on a law list or in a bar publication; communications with current or former clients and with other lawyers; information sent at the request of a prospective client; and professional announcement cards or communications sent to other lawyers, relatives, friends, and existing or former clients.
Although advertised as a rewrite of the advertising rules, the amendments contain many of the provisions of the current rules. The rules continue to prohibit direct solicitation of clients and to restrict direct mail ads, including prohibiting direct mailings within 30 days of an event that has potentially caused a personal injury or wrongful death.
Once an ad is filed with the Bar, it must finish its review within 15 days of receipt of the complete filing. Lawyers cannot file entire websites but may file a specific page or provision of a website for the Bar’s review. With some exceptions, the Bar may not pursue a grievance against a lawyer or law firm based on an ad that has received Bar approval. Similarly, the Bar may not pursue a grievance that a segment of a website is potentially misleading or unduly manipulative, unless the law firm or lawyer responsible for the site has been notified and had a chance to remove the information.
Chief Justice Ricky Polston and Justices Fred Lewis, Jorge Labarga, and James Perry concurred in the per curiam opinion.
The court acted in In Re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7, Lawyer Advertising Rules, case no. SC 11-1327. The complete opinion can be found on the court’s website and the court’s order also has been posted on the Bar’s website. The Bar will post the updated rules on the May 1 effective date.