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April 1, 2011

Advertising Update
Prepared by the Staff of The Standing Committee on Advertising
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Recent decisions of The Board of Governors on advertising, July 2010 through January 2011.

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:

1. Past Successes
Rule 4-7.2(c)(1)(F) prohibits any statement in lawyer advertising that contains any reference to past successes or results obtained. The board affirmed the committee’s decision determining that the listing of a lawyer’s membership in Million Dollar Advocates Forum violates Rule 4-7.2(c)(1)(F) which prohibits communications that refer to past results. The committee noted that the selection criterion is not verified and that there appears to be no legitimate selection criteria other than having obtained a specific result.

2. Lawyer Referral Services
The board affirmed the committee’s decision determining that the Christian Lawyer Directory is a lawyer referral service under Rule 4-7.10 because the on-line directory referred to itself as a lawyer referral service in its filing, lawyers pay a fee to be listed, and it only lists those lawyers who pay.

3. Promising Results
Rule 4-7.2(c)(1)(G) prohibits any statement in lawyer advertising that promises results the lawyer can achieve. The board affirmed the committee’s decision determining that the following language promises results in violation of Rule 4-7.2(c)(1)(G):

    [W]e can help…get your medical bills paid…. And we can even help take care of your lost wages.

Recent decisions of the Standing Committee on Advertising, September 2010 through February 2011.
At the committee’s recent meetings it made the following decisions on appeals from staff opinions on lawyer advertising:

1. Quality of Legal Services
The committee determined that the following italicized language describes or characterizes the quality of the services being offered and therefore is prohibited by Rule 4-7.2(c)(2):

Is Your Law Firm at the Top of the Food Chain?

[Attorney] called his partners “very talented,” adding that he “couldn’t imagine two more principled guys.”

[Attorney] says the lawyers at [law firm], are proud to a part of the firm because of the principles it stands for. “They like being part of a firm that will not back down because we may get criticized. They like being part of a firm that has the respect we do in the legal community,” [attorney] explains.

[Attorney] says the lawyers at [law firm], are proud to a part of the firm because of the principles it stands for. “Founding partner [attorney] with over 40 years of practice as a criminal and civil trial attorney, has represented a number of high profile clients and, as evidenced by this year’s 27th consecutive inclusion in the The Best Lawyers in America [trademark symbol], he has consistently earned the respect of his peers.

[Attorney] says the lawyers at [law firm], are proud to a part of the firm because of the principles it stands for. “[Attorney], who heads up the firm’s qui tam division, is a former Assistant U.S. Attorney, an experienced litigator, and author of a leading national treatise on qui tam and health care fraud litigation.”

[Attorney] says the lawyers at [law firm], are proud to a part of the firm because of the principles it stands for. “The Litigation Team also includes [attorney], a Martindale-Hubble AV rated civil trial attorney, who with a background in mechanical engineering and over twenty years of civil trial experience brings a unique and valuable perspective to litigating complex product liability, medical malpractice, personal injury, wrongful death and commercial litigation cases.

The committee determined that the following language “Make the right call” with the advertising firm’s telephone number does not describe or characterize the quality of the services being offered under Rule 4-7.2(c)(2) in the context of an advertisement filmed in a professional football stadium using football terms.

2. Promising Results
Rule 4-7.2(c)(1)(G) prohibits any statement in lawyer advertising that promises results the lawyer can achieve. The committee determined that the language “Get what you deserve” does not promise results and is permissible under Rule 4-7.2(c)(1)(G) in the context of an advertisement for Social Security appeal claims stating that 70 percent of claim appeals win.

3. Misleading Language in Advertisements
Rule 4-7.2(c)(1)(A) provides that “A lawyer shall not make or permit to be made a false, misleading, deceptive communication about the lawyer or the lawyer’s services. A communication violates this rule if it: contains a material misrepresentation of fact or law[.]”

The committee found that the following statements by a lawyer referral service are misleading in violation of Rule 4-7.2(c)(1)(A):

    Call [lawyer referral service] and let them provide you with a qualified attorney who may get you up to $100,000.00.... Maybe even more depending on the facts.

In addition, the committee found that the following statements by an attorney are misleading in violation of rule 4-7.2(c)(1)(A):

    If you’ve sustained broken bones as a result of an accident you may be entitled to hundreds of thousands of dollars to help you.

The committee determined that it is permissible to use $10,000 as a specific amount the viewer may be entitled to because it is tied to PIP insurance that is mandated by statute, but using or implying any specific dollar amount that is more than the $10,000 in PIP benefits would be misleading, because there is no basis for the statement.

Additionally, the committee determined that the following language in the context of the entire advertisement is misleading because it appears that the filer is a partner with a nonlawyer, which is prohibited by Rule 4-5.4(c):

    How about hearing from two guys that have been in Northern Palm Beach County a combined 100+ years, instead of someone who just flew in for the seminar?

    [Name of attorney], Attorney – Will be providing you with important new updates on “Estate Planning in an Uncertain Tax World.”

    [Name of financial advisor], Financial Advisor – Will breakdown the myths about “Safe Investments”, illustrate proven results, and discuss How to Protect Your Assets, and Pass on Wealth to your Heirs – Income Tax Free!

The Standing Committee found that a television advertisement that portrays two of the firm’s lawyers on the courthouse steps surrounded by reporters clamoring for the lawyers’ attention is false, misleading, and deceptive in violation of Rule 4-7.2(c)(1), but that the disclaimer “Dramatization, not an actual event” would bring the advertisement into compliance.

Finally, the committee determined that an advertisement, which states “PREFER A JEWISH LAWYER!” and “JEWISH AMERICAN BAR ASSOCIATION” is misleading in violation of Rules 4-7.2(c)(1)(B) and 4-7.10 because the entity appears to be the creation of a nonlawyer for marketing purposes and is not a bona fide bar association.

4. Improper Comparison
An attorney’s services can be compared to another lawyer’s services only if “the comparison can be factually substantiated.” Rule 4-7.2(c)(1)(I). The committee determined that the following language is prohibited because the comparison of services cannot be factually substantiated:

    Is Your Law Firm at the Top of the Food Chain?

The committee determined that the following italicized language is permissible as it is not a comparison of services:
    [Firm] has grown from a small, well-respected Milwaukee law firm to a place among the Am Law 200, building a national practice and earning a comparable reputation throughout the United States.

However, the committee commented that the language “well-respected” is impermissible because it characterizes the quality of services in violation of Rule 4-7.2(c)(2).

5. Prohibited Visual Images, Generally
Rule 4-7.2(c)(3) provides: “Visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events shall not be deceptive, misleading, manipulative or likely to confuse the viewer.”

The committee determined that an image of a tiger coupled with the statements, “Is Your Law Firm at the Top of the Food Chain?” and “To us, winning is everything” is misleading and manipulative in violation of Rule 4-7.2(c)(3) based on the case of The Florida Bar v. Pape & Chandler, in which the Florida Supreme Court found that the image of a pitbull and the telephone number 1-800-PITBULL was a misleading portrayal that lead viewers to conclude that the advertising law firm would engage in improper tactics to win.

The committee commented that the image of a tiger with the statement “Is Your Law Firm at the Top of The Food Chain?” are not permissible even with the statement “To us, winning is everything” removed. The committee noted that the photograph of the tiger would be permissible if it appears in a public service announcement that the law firm is sponsoring the new tiger exhibit at the local zoo.

The committee also determined that a nonlawyer spokesperson dressed in a nurse’s uniform who states the following is deceptive, misleading, or manipulative in violation of Rule 4-7.2(c)(3):

    As a nurse, I see it all. So, if you’ve been hurt in a car wreck, I know what you’re going through. There’s pain, financial stress ... and dealing with the insurance company ... that’s tough. Some people call a lawyer to help with all that. I think that’s a good idea. Because while I can help you get back on your feet....

The committee commented that a disclaimer, such as “Paid Actor,” would not cure the misleading nature of the advertisement, because the person states that she is a nurse and appears in a hospital setting.

6. Direct Mail
The committee determined that a postcard advertising a seminar sponsored by the firm is a direct mail advertisement subject to the filing and review requirement of Rule 4-7.7(a)(2)(A) because it is a mailing to the general public. Additionally, the committee determined that the postcard must be marked “advertisement” in red ink on the address panel as required by Rule 4-7.4(b)(2)(B).

7. Solicitation
The committee determined that an attorney is prohibited from randomly hand delivering flyers to car windshields or homeowners’ mailboxes, because those methods of delivery constitute direct, in-person solicitation in violation of Rule 4-7.4(a).

The committee commented that an attorney advertisement containing a firm’s name, city, website and otherwise exempt information marketing DUI representation to be printed on wristbands that are given out at nightclubs, bars and other venues such as PGA events and given out by event or proprietor staff to designate an individual as a person over the age of twenty-one is considered in-person solicitation in violation of Rule 4-7.4(a) and therefore impermissible.

The information provided in this article is for educational purposes. The content of any ad 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 (800) 235-8619 and we will be happy to assist you. You may also review the advertising rules and sample advertisements on the Bar’s website at www.floridabar.org.

[Revised: 09-29-2014]