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March 15, 2009
Court rejects Bar’s Web site ad rules

By Mark D. Killian
Managing Editor

Questioning whether they would provide sufficient protection for the public, the Supreme Court has rejected the Bar’s proposed lawyer Web site advertising rules, but made several suggestions on how the rules could be improved.

The Bar’s proposals would have required that the home page of a lawyer Web site comply with all the substantive lawyer advertising regulations, which are set forth in Rule 4-7.2. After the home page, the remainder of the lawyer Web site has to comply with all substantive lawyer advertising regulations except for testimonials, references to past case results, and characterizations of the quality of their legal services — items that are prohibited in other types of lawyer ads. The Bar would have required disclaimers if the lawyer included testimonials or references to past results.

The court found the Bar’s proposed amendments were “not sufficient” to make material behind the home page fall under the concept of information “upon request,” but said “sufficient changes” could be made to the advertising rules to make pages behind the home page constitute material “upon request.” Information provided at the request of a prospective client is not subject to the lawyer advertising rules, but cannot be misleading.

To do that, the court suggested the Bar consider a two-step process — including having the public accept a disclaimer — before accessing the inside pages of a lawyer’s Web site.

“First, users 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),” the court said. “Only after the user navigated through these two pages would the user be able to obtain the additional information.”

The court said taking those added steps would make obtaining information from a Web site similar to getting information “upon request” from a lawyer, as when potential clients phone firms asking for information and then are mailed a DVD or brochure by the lawyer with the requested information.

The Bar contended that there are “significant difficulties” in regulating attorney Web sites in that posted material can be constantly changed and the site can present voluminous amounts of information, making review of that information an overwhelming task.

“Thus, as the Bar is unable to review all of the material posted on attorney Web sites, we suggest that the Bar consider requiring attorneys to certify their compliance with the computer-accessed communications rules,” the court said. “This required certification could be included on Bar members’ annual dues statements, similar to the required certification of compliance with the trust accounting rules.”

The court said if the Bar’s general investigations of Web sites reveal an attorney whose site does not comply, the Bar could then proceed with a disciplinary investigation in a manner similar to when the Bar discovers violations of the trust accounting rules.

Chief Justice Peggy Quince, concurring in part and dissenting in part, said she disagrees with the portion of the opinion that suggests that if a user has to navigate at least two pages that would make the rest of the Web site “upon request” and, therefore, not be subject to regulation by the Bar.

Chief Justice Quince also noted the Bar’s Citizens Forum — composed of citizens who could be consumers of legal services — looked at the proposed rules and recommended lawyer Web sites be subject to the same substantive rules as all other forms of lawyer advertisements, including submission of the filing with the Bar for review. The Bar’s Special Committee on Website Advertising made the same recommendation — excluding only the requirement of filing with the Bar for review.

“I agree with these groups that the substantive advertising rules of the Bar should apply to Web-based advertisements,” Chief Justice Quince said. “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 Web sites.”

In a concurring opinion, in which Justice Jorge Labarga concurred, Justice Barbara Pariente said while the “two clicks” solution is a “reasonable compromise” she is still concerned about the use of “testimonials.” Pariente said Bar rules presently do not define the term “testimonial” and asked the Bar to further study and define what is meant by the “testimonial” and report back to the court.

“[I] find it is these laudatory-type statements or ‘testimonials’ that are the most troubling because they have the most potential for abuse and the most potential for further denigrating the justice system and this profession in the minds of the public,” Pariente said.

Likewise, Justice Charles Canady, who concurred in result only, said the use of testimonials and statements regarding past results needs more study in that the rules as currently written are convoluted.

“The 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,” Canady said.

“This is a matter that should be considered and clarified before a proposal such as that presented by the Bar is adopted,” Canady said.

The Bar is reviewing the order and considering whether to file a motion for rehearing or clarification, according to Mary Ellen Bateman, director of the Bar’s Ethics & Advertising, UPL, and Special Projects Division.

The court acted February 27 in case SC08-1181.

[Revised: 04-01-2014]