Florida Bar News

Advertising Update

The Board of Governors of The Florida Bar considers appeals from opinions of the Standing Committee on Advertising. The board’s decisions on advertising issues at its most recent meetings are as follows:

Comparison
Rule 4-7.13(b)(3) provides that a lawyer’s services can be compared to another lawyer’s services only if the comparison is objectively verifiable. Rule 4-7.13(b)(3). The board affirmed the committee’s decision determining that the following statements improperly compare the advertising law firm’s skills, experience, reputation or record, unless the comparison is objectively verifiable:

• There’s a difference between “TV lawyers” and our law firm.

• “This legal guide may make us unpopular with some of the big TV law firms. Too bad. We’re trying to level the playing field for Florida accident victims.”

• [Name of advertising attorneys] met while working at large local law firms that operated with what they call the “Mill Mentality.” The goal of the “Mill Mentality” is to attract as many cases as possible and then push them through the legal system quickly. It was a volume business that produced great revenue for the law firms, but [name of advertising attorneys] always felt the clients weren’t getting the personal attention they deserved.

• In 2006 [name of advertising attorneys] decided to do things differently. They envisioned a law firm where clients could work directly with their attorneys — not paralegals, case workers, or assistants like they would at a typical “TV law firm.”

Characterizes Skills, Experience, Reputation, or Record
Rule 4-7.13(b)(3) prohibits advertisements that contain statements, words or phrases that characterizes the lawyer or law firm’s skills, experience, reputation, or record unless it is objectively verifiable. The board reversed the committee’s decision determining that the law firm name “PowerLegal” does not characterize the law firm’s skills, experience, reputation, or record in a way that is not objectively verifiable and is therefore permitted.

Solicitation
The board affirmed the committee’s decision determining that the lawyer advertising rules apply to a solicitation for a non-legal business in which the lawyer has an ownership interest when the letter is sent on law firm letterhead.

At the committee’s recent meetings it made the following decisions on appeals from staff opinions on lawyer advertising:

Economic Incentives
An advertisement cannot offer an economic incentive for consumers to hire the lawyer or view the advertisement. Rule 4-7.15(d). The committee has determined that the following offers an economic incentive, in violation of Rule 4-7.15(d):

A radio advertisement offering a free accident kit (which includes a car charger with two USB jacks, a waterproof disposable camera, the filer’s newsletter and business card, two pens, a tape measure, a yellow crayon, post-it notes, a jar opener, an accident guide to store in the glove compartment, and a booklet on buying auto insurance) is an impermissible economic incentive under Rule 4-7.15(d) as currently used because: the consumer must go to the filer’s website which contains promotional material about the firm in order to obtain the free accident kit; the free accident kit contains the filer’s monthly newsletter which contains promotional information about the filer’s firm; and the filer continues to send a monthly newsletter to recipients of the free accident kit unless they affirmatively opt out of its receipt. The committee informed the filer that to comply with the rule, the filer must create a page on the filer’s website that has no information other than the filer’s law firm name, information about the accident kit, and a form for consumers to fill out so that the filer can mail them the kit; the filer must not include the newsletter or any other promotional materials about the filer in the accident kit; the filer must not send any subsequent promotional materials to consumers who have received the kit unless they affirmatively request information from the filer about the filer’s firm; the filer must not add the consumer to the filer’s mailing list to receive additional materials about the filer’s firm; any advertisements for the free accident kit must contain the URL for the “sanitized” page that contains no information about the filer other than the filer’s law firm name. The committee commented that the “sanitized” page may contain an option for consumers to affirmatively choose to receive the monthly newsletter.

The committee also determined that an offer to enter consumers into a drawing for a gift card for “liking” the lawyer’s Facebook page violates Rule 4-7.15(d) because the consumer would have to view the advertising lawyer’s Facebook page in order to “like” the page and be entered in a drawing for a gift card.

The committee determined that the following offer, for the filer to loan electronic notepads to personal injury clients on a restricted basis, is permissible under Rule 4-7.15(d) and is not considered an economic incentive based on the statements by the filer that the electronic notepads are locked by the service provider, can only be used for contact with the law firm and review of materials related to their cases, and no features are available for personal use by the clients so long as the filer places the disclaimer regarding the restrictions immediately after the offer to make the loan of the electronic notepad.

Board Certification
The committee determined that the on screen text “Call Board Certified [name of attorney]” in a television advertisement is impermissible because the name of the certifying organization and area of practice are not included in violation of Rule 4-7.14(a)(4):

Awards and Ratings
Rule 4-7.14(a)(3) provides that advertisements cannot contain information about awards, honors, ratings, or memberships of lawyers “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 that includes among its members or those recognized a reasonable cross-section of the legal community the entity purports to cover.” The committee has determined that “Top Personal Injury Attorney, as published in the Wall Street Journal (2011)” and “Recognized for Excellence American Registry (2011)” do not meet the requirements of this rule because the filer did not provide any information about the entities conferring the awards and staff was unable to find any information about the entities’ selection criteria in an online search, other than the American Registry offers plaques.

The committee determined that the American Bar Association uses objective selection criteria in bestowing its award for National Outstanding Young Lawyer.

Prediction of Results
Rule 4-7.13(b)(1) prohibits any statement in lawyer advertising that a consumer can reasonably interpret as a prediction or guaranty of success or specific results the lawyer can achieve. The committee determined that the following language is a prediction of a result in violation of Rule 4-7.13(b)(1):

• …and $$$ on your case.

• Collect $$$ for your damages, medical bills, lost wages, income, pain & suffering.

• We’ve all heard the story before. Two men on a battlefield. One is a giant – undefeated, well-armed, and backed by a huge army. Let’s call him Goliath. On the other side is what appears to be just a man armed with nothing more than a rock and a sling. We all know how that story ends, don’t we? The question is, who do you want on your side? My name is [name of attorney], but you can call me David.

The committee also determined that the same language regarding David and Goliath characterizes skills, experience, reputation, or record and is prohibited because it is not objectively verifiable, in violation of Rule 4-7.13(b)(3).

The committee noted that if the filer removes the phrases “We all know how that story ends, don’t we?” and “you can call me David”, that the statements regarding David and Goliath would not predict a success or characterize the quality of legal services.

The committee determined that the following italicized language is permissible under Rule 4-7.13(b)(1) because it does not predict a result:

• We think personal injury cases should be handled by a team approach with you and our firm. This begins from the day you call us to meet with one of our experienced attorneys and support staff, throughout the claims process. . . and .

Unduly Manipulative
Rule 4-7.15(a) provides that an advertisement cannot contain any image, sound, video or dramatization that is unduly manipulative. The committee determined that the image of the firm’s attorneys dressed in business suits pictured in an alley holding baseball bats is unduly manipulative because it is “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” as prohibited by Rule 4-7.15(a).

Improper Tactics
Rule 4-7.13(b)(7) provides that an advertisement cannot include statements, trade names, telephone numbers, Internet addresses, images, sounds, videos, or dramatizations that state or imply that the lawyer will use tactics that are prohibited by the Rules of Professional Conduct, court order, court rule or law. The committee determined that the image of the firm’s attorneys dressed in business suits pictured in an alley holding baseball bats states or implies that the lawyer(s) will use tactics that are prohibited by The Rules of Professional Conduct, court order, court rule, or law as prohibited Rule 4-7.13(b)(7).

Some committee members commented that not all depictions of lawyers with baseball bats are impermissible, and encouraged the firm to resubmit with some of the alternatives proposed by the firm at the meeting, such as carrying the bats in a different position, appearing in a baseball forum such as a field, wearing baseball jerseys, and using the firm’s slogan “we go to bat for you” to make clear the firm’s intent.

Solicitation
The committee determined that a text message sent to a recipient’s telephone is considered a direct solicitation by telephone prohibited under Rule 4-7.18(a).

Lawyer Referral Services
The committee determined that the following statements in a television advertisement for a lawyer referral service are misleading in violation of Rule 4-7.13(a) because calls to the lawyer referral service are received at the filer’s chiropractic clinic, callers are not referred to other doctors or lawyers until after the caller has a medical appointment at the filer’s clinic, and because the lawyer who appears in the advertisement gives the impression that he is a neutral party without disclosing that the lawyer receives referrals from the advertising chiropractic clinic:

• The committee also determined that the callers to the lawyer referral service, who are funneled through the filer’s chiropractic clinic before being referred to a lawyer, are being improperly solicited in violation of Rules 4-7.22(a) and 4-7.18(a). The committee also concluded that this lawyer referral service is not a true referral service but instead a chiropractic clinic engaging in improper solicitation on behalf of lawyers because calls to the lawyer referral service are received directly at the filer’s chiropractic clinic and callers make appointments at the clinic at the same time or before being referred to lawyers or other doctors.

The information provided in this article is for educational purposes. The content of any advertisement noted in this article may constitute the intellectual property of the advertising lawyer or another person and use of any of the content of the advertisements may require permission of the copyright holder. If you have any questions regarding lawyer advertising, call the Ethics Hotline at 1-800-235-8619 and we will be happy to assist you.