Lawyer Web sites, radio, and television ads would face greater Bar oversight
By Gary Blankenship
Senior Editor
Virtually every radio and TV lawyer ad would have to be approved by The Florida Bar before it aired under recommended new advertising rules approved by the Board of Governors at its April 8 meeting.

In addition, all Web sites would fall under Bar advertising rules, and the board rejected a suggested rule mandating delays in direct mail solicitations in criminal cases.

The rule changes will now be submitted to the Supreme Court for review.

The board took those actions as it reviewed the final recommendations from the Advertising Task Force 2004. The board accepted most of the task force’s suggestions, but changed several, including the review of electronic ads.

The task force had proposed an incentive policy whereby lawyers who waited to publish or air their ads until the Bar reviewed them would receive immunity from any future-discovered violations of the advertising rules. That would not apply if the lawyer deliberately lied in the ad and concealed it from the Bar. The Bar would have 15 days to approve the ad, or request further information from the lawyer.

The board approved that condition for printed media and direct mail ads, but voted to require prior approval for radio and TV ads. That standard would not apply to ads that conform with a “safe harbor” provision and provide only basic “tombstone” information and consequently do not have to be submitted for Bar review. Almost no radio or TV ads have fallen within the safe harbor provisions.

The action on ad review came in executive session as the board received legal advice on that issue.

Direct mail solicitations in criminal cases got more feedback than any other issue considered by the task force, according to its chair, Manny Morales. And, he noted, all but one or two of those who contacted the Bar opposed any restriction.

The panel considered proposals to extend the 30-day ban on direct mail solicitation in personal injury cases to criminal and traffic cases. But the task force unanimously rejected that proposal and wound up making only minor editorial changes to Rule 4-7.4 on contact with potential clients. Bar Ethics Counsel Elizabeth Tarbert said court rulings in other states struck down similar provisions. (The U.S. Supreme Court has upheld the Bar’s 30-day waiting period on direct mail solicitation in personal injury cases.)

Board member Robert Rush was one of three board members who suggested an alternative in which lawyers wait five days for such a mailing and then be prohibited if another attorney has filed a notice of appearance.

He said there are two problems with the present system. One is many people facing a criminal charge are being inundated with solicitations they don’t want, and many of those people already have an attorney.

“It’s a very minimal delay, but I think it’s an important step,” Rush said. “Really, we’re chasing down criminal cases now the way the lawyers got a reputation for chasing down personal injury cases.”

Board member Warren Lindsey agreed.

“I think it’s very important not to interfere with the existing attorney-client relationship,” he said. “It would be a mistake for our board not to have an advertising lawyer check to see if a person is already represented.”

But board member Hank Coxe said the first 48 hours after charges have been filed can be critical.

“I don’t think you can have a system that says you have to check with the clerk’s office [to see if a client is represented before mailing a solicitation],” he said.

Young Lawyers Division President Michael Faehner said many young lawyers and those opening their own practices after working for state attorneys or public defenders rely on such direct mail advertising. Eliminating it, he argued, would favor older, more established lawyers and law firms.

“Most of the advertising is tasteful,” Faehner said. “We’re telling the public what their rights are, along with price advertising.”

The board by a large majority rejected the proposed five-day waiting period.

On lawyer Web sites, Morales said the task force recommended that those be treated as communications made at the request of a potential client. That would mean they would be exempt from advertising rules, but still governed by other Bar rules that would prohibit them from being deceptive, misleading, or dishonest.

He warned that making Web sites subject to the ad rules would create an enforcement problem because the Bar doesn’t have the staff to review them. A Web site, printed out, can involve hundreds of pages of documents.

Tarbert, in response to a question, also said making Web sites subject to the rules would change the status quo. Currently Web sites are covered by most existing Bar ad rules except that law firms can talk about past results and make statements characterizing their quality of legal services. Those would be prohibited under the proposed new rules. Web sites would continue to be exempt from filing requirements.

Board members, though, said it would be inconsistent not to include Web sites under the ad rules. Board member Gary Leppla noted that the Disciplinary Procedure Committee reviewed the issue and voted 5-2 that Web sites should be covered.

“We could not see the difference between the initiative of clicking or Googling and the initiative of picking up Yellow Pages [to find a lawyer],” he said. “You’re right, it [enforcement] is a practical problem; it’s a horrible practical problem. But we’re talking about supporting a recommendation [from the task force] that is an affirmative statement that says a Web site is not an advertisement and is not subject to the rules. We can’t do that.”

“It is not logical to exempt this area of communications,” board member Scott Hawkins added. “It is not logical to say just because we have difficulty enforcing it, you should not regulate it.”

The board voted that Web sites are subject to all ad rules, except the requirement that they be filed with the Bar for review. Bar President Kelly Overstreet Johnson said the enforcement issue will have to be studied further.

On other ad rules issues, the board:

• Rejected the task force’s recommendation to drop a requirement that attorneys only advertise in areas where they practice. Morales said the task force felt there was no practical way to enforce that provision, but board members argued it was important that lawyers be truthful with their abilities in their ads. Morales also noted that provision was aimed at attorneys who advertise for cases that they intend to refer out.

“The public has the right to receive information about lawyers; it’s not the lawyers’ right to advertise,” said board member Tim Sullivan. “If a lawyer wants to start practicing in personal injury work and goes and studies up and then advertises, that’s okay. They practice in that area even if it’s their first case. But not people who just refer cases and don’t apply themselves to learn the law.”

Board member Harold Melville agreed, saying, “When you advertise, you are making a representation that you are competent in that area. I don’t think it’s that hard to enforce.”

• Rejected the task force recommendation, for the same reasons, to drop language that lawyers must disclose in an ad if they intend to refer cases generated by the ad.

• Agreed with the task force recommendation to drop disclosure language required in print ads that the decision on hiring a lawyer should not be based entirely on an ad. Morales said the task force felt the language, which is not required in electronic ads, no longer served any useful purpose.

• Agreed with the task force that a nonlawyer spokesperson in a radio or TV ad does not have to be identified as a nonlawyer if it is clear from the ad that person is not an attorney.

• Agreed with the task force that a provision should be added making the rules apply to out-of-state attorneys who advertise in Florida.

• Agreed with the task force on adding language clarifying that advertising rules do not apply to communications between attorneys, between attorneys and family members, between attorneys and current or former clients, and for communications provided at the request of a potential client. Those communications, though, are covered by other Bar rules that such information cannot be false, misleading, or deceitful.

• Accepted the task force recommendation to expand the safe harbor provisions on what could be included in an ad that did not have to be submitted for Bar review. The board also approved a rearranging of a general rule on ads that creates three categories: information that must be included in ads, information that may be included, and information that cannot be included in ads.

• Accepting the task force recommendation that lawyer referral services must clearly identify themselves as referral services in their ads.