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Court amends lawyer ad rules

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Court amends lawyer ad rules

Prior review of TV, radio ads adopted



Gary Blankenship
Senior Editor

The Florida Supreme Court has approved most of the changes to the Bar’s advertising rules recommended by the Board of Governors, including a requirement that TV and radio ads must be approved by the Bar before they are aired.

On the hot topic of Web site advertising, the court deferred ruling for now.

The court, though, also ordered a more wide-ranging study of advertising issues, recommended by Tampa attorney Bill Wagner, who served on the Bar’s Advertising Task Force 2004.

That task force spent more than a year — beginning in February 2004 — studying the advertising rules and its recommendations formed the basis for the board’s proposals to the court.

The ruling came November 2 in In Re: Amendments to the Rules Regulating The Florida Bar – Advertising, case no. SC05-2194. The changes become effective January 1. Two justices partially dissented, but only where the court deviated from the Bar’s recommendations.

When the court majority did diverge from the Bar’s suggested rule amendments, it tended to be more restrictive.

“I am very pleased that the court adopted the vast majority of the Bar’s recommendations,” President Hank Coxe said. “The public will be better protected with prior review of television and radio advertisements, which is the most significant decision that the court made.”

Coxe also said the Bar is happy to respond to the court’s request for further input on some of the Bar’s proposals, as well as the court’s request that the Bar continue to study lawyer advertising and make further recommendations based on the results of that study.”

Miami attorney Manny Morales, who chaired the Advertising Task Force 2004, said the court’s calls for further studies on some issues could be a sign that with rapid changes in advertising and the practice of law itself, the court wants the Bar to continually monitor those trends and adjust the Bar’s rules accordingly.

“Obviously this is an area that’s going to be in a state of flux, and we’ll change and adapt as we go along. This is probably an area that the Bar is always going to have to have an eye on,” he said. “I think what we needed to do is take a look at our rules for right now [with the task force’s review], and then I think the right thing to do is what they [the justices] said, ‘Don’t stop here but continue to look at this and give us an idea of what’s going on with lawyer advertising and lawyer marketing.’”

Ironically, one of the most hotly debated proposed changes by the task force and Board of Governors – requiring prior Bar approval of TV and radio ads – wound up getting little attention from the court. Currently, ads needing a review must be filed with the Bar no later than the date of their publication or broadcast, which will remain the same for all media except TV and radio.

This new rule was not discussed extensively in oral arguments. The opinion only noted that the task force favored not requiring a pre-approval of those ads and the board supported the prior review. That amendment was approved with several other rule changes which were not altered from the Bar’s recommendations to the court.

In his comments to the court, Wagner argued the task force and Bar took a too narrow view of advertising, and a more in-depth review was needed. After the ruling was issued, Wagner said in an interview his concern is that when the advertising rules were originally created, the Internet was largely unknown and only a few firms even considered TV advertising.

“Today it involves more than what we see on television and what we see in the Yellow Pages. It involves the concept of marketing and we need to reevaluate the extent to which lawyer marketing needs to be regulated,” he said. “The whole concept of the Internet has dramatically changed advertising.”

Wagner added that he supports most of the Bar’s proposed changes, but felt it should have conducted a more thorough review. The Supreme Court apparently agreed.

“[T]he court requests that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising, as recommended by Mr. Bill Wagner in his written and oral comments to the court,” the opinion said.

The court declined to adopt any of the Bar’s proposed changes to Rule 4-7.6 on regulation of lawyer Web sites and online advertising. It noted instead that a special committee on lawyer and law firm Web sites has been studying that. (Its recommendations are due to be acted on by the Board of Governors at its December 8 meeting.

“[I]t 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,” the opinion said. “Accordingly, the court does not adopt the proposal for rule 4-7.6. The court will consider the regulation of Internet communications when the Bar files the report of the special committee.”

The court modified the Bar’s proposed changes to Rule 4-7.1 on communications. The Bar proposed that communications with family members, other lawyers, and current or former clients be exempted from advertising regulations, although they would remain covered by other Bar rules.

The court accepted, for the moment, only the exemption on family members.

“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,” the opinion said. “We defer adoption of those two exemptions at this time.”

It added, “For similar reasons, the court deletes a portion of the proposed comment to rule 4-7.4 (Direct Contact With Prospective Clients). The proposal would have added language to the comment that would have stated that the advertising rules did not apply to certain ‘prior professional relationships.’”

The other change from the Bar’s recommended amendments came on nonlawyer spokespersons in radio and TV ads. The current rule requires that all such spokespersons clearly identify that they are spokespersons and not lawyers with the advertising firm.

The court rejected the Bar’s proposed change that would drop those requirements in ads where it was clear the speaker was a spokesperson and not a lawyer — such as underwriting announcements aired on National Public Radio stations.

“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,” the opinion said.

Among changes proposed by the Bar and approved by the court were:

• Specifying that out-of-state lawyers who advertise in Florida to provide authorized legal services are covered by the advertising rules.

• Adding to the types of information that can be in ads which do not require a review by the Bar.

• Clarifying that Bar rules prohibiting dishonesty or misrepresentation apply to all lawyer communications, whether or not otherwise covered by the advertising rules.

• Deleting a provision that prohibits ad language “likely to create an unjustified expectation about results the lawyer can achieve,” but adding a prohibition on language that would “promise results.”

• Providing that lawyers may not call themselves experts or say they have expertise in a certain area of law unless they are certified in that area.

• Dropping the requirement that many print ads include a “hiring disclosure,” which states that hiring an attorney is a serious matter and prospective clients may want to seek more information than is provided in an ad.

• Providing that a lawyer cannot be disciplined for an ad that has been approved by the Bar, except where misrepresentations are not apparent on the face of an ad.

Chief Justice Fred Lewis and Justices Charles Wells, Barbara Pariente, Peggy Quince, and Raoul Cantero concurred in the per curiam opinion. Justice Kenneth Bell, joined by Justice Harry Lee Anstead, wrote a separate opinion which said, “I would adopt The Florida Bar’s proposed amendments without exception.”

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