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June 15, 2011
Redrafted advertising rules on their way to the S. Court

The Bar’s proposals would allow the limited use of testimonials and ‘objectively verifiable’ past results

By Gary Blankenship
Senior Editor

Proposed lawyer advertising rules that would allow some testimonials but also make all lawyer websites subject to those rules — except for requiring Bar review — have been approved by the Board of Governors.

The board, at its May 27 meeting in Key West, approved a rewrite of the rules prepared by the Board Review Committee on Professional Ethics. The redrafted rules are scheduled to be submitted to the Supreme Court, which has the final say, by July 5.

Carl Schwait Committee Chair Carl Schwait said the amendments came in response to a Supreme Court order in 2007 when it acted on an earlier ad rules package. In drawing them up, the committee took into account U.S. Supreme Court rulings on lawyer advertising and free speech, other federal court rulings, Florida Supreme Court rulings on advertising, input from numerous attorneys, a Bar-sponsored survey on public attitudes about lawyer advertising, and suggestions from the Bar’s Citizens Forum.

The panel also worked with the Bar’s legal counsel, Barry Richard, who has defended Bar advertising rules in federal court.

“We believe that these changes are necessary to encourage the free flow of information to the public that is necessary for the selection of a lawyer,” Schwait told the board.
He said the committee sought to provide simplicity, clarity, consistency, and defensibility in the rules.

“We want lawyers to look at the rules and find they are simple in how they are structured, and they can find the rule they need,” Schwait said. “And once they’ve read the rules, it’s clear about what we are talking about, and more importantly it’s clear what they have to do. . . .

“The 90,000 lawyers of Florida have the right to know what is compliant and what is not compliant. They have the right to know where the line is drawn . . . .You get the rule, and it tells you exactly what you can and cannot do.”

Among the major changes is the rules will, for the first time, allow the limited use of testimonials, as long as they are not misleading.

The rule provides examples of what is a misleading testimonial, including prohibitions against paid testimonials. Lawyers may also refer to past results if they are objectively verifiable and are not in any way misleading.

Schwait said under the proposed rules, all ads that require Bar review must be submitted at least 20 days before publication or their first use. Currently the rules require pre-approval only of radio and TV ads.

An exception to the required review is websites, which because of their size, complexity, and potential for frequent changes, do not have to be submitted for Bar review either under the current or proposed rules. But the proposed rules specify that websites are otherwise subject to all other advertising rules.

“The Florida Supreme Court has made it clear that websites should be regulated the same as all other forms of advertising,” Schwait said.

The rules also provide that a lawyer will not be prosecuted if a part of a website is found in violation of the rules until the lawyer has been notified and has a chance to remove or change the offending information.

The proposed rules keep the prohibitions on deceptive or inherently misleading ads. However, dramatizations will be allowed as long as they include a disclaimer that it is a dramatization and not an actual event.

Lawyers must continue to include in all ads an actual office location where they practice. The rules do not change the long-standing prohibition against in-person solicitation of clients.

A complete draft of the proposed ad rules can be found here. They may also be found on the Bar’s website, under “Advertising Rules” in the Lawyer Regulation section of the site. The committee’s final report is there, as well as a legislative format presentation of the rules delineating the proposed changes.

[Revised: 03-02-2014]