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The Florida Bar

Attorney Advertising

On This Page
I. Issue
II. Bar Position
III. Background
IV. Facts and Statistics

I. Issue

Critics of attorney advertising claim that unrestricted advertising may damage the image of the justice system and place inordinate emphasis on "business" at the expense of the "public service." Critics also point to some evidence that TV advertising by personal injury lawyers is producing juror bias against the clients of the advertising lawyers. Proponents of legal advertising argue that such commercial free speech benefits the public by providing more information and, in some cases, drives down legal fees.
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II. Bar Position

A. American Bar Association's Position

The ABA Model Rules currently call for disciplinary action if an ad is false, misleading or deceptive. The ABA in August 1988 also adopted "Aspirational Goals for Lawyer Advertising," which strongly encourage lawyers to aspire to uphold the dignity of the profession by producing dignified and high­quality ads. In 1994, the ABA Commission on Advertising undertook a special study on the current nature of lawyer advertising and recently published its conclusions and recommendations. Among these is the need to put the public's interests first while developing regulations that pass constitutional muster. Model Rules 7.1 through 7.5 provide the ethical regulation of advertising, solicitation, and marketing when the provisions are adopted by the states. These provisions prohibit marketing that is false or misleading and set out the circumstances when it is permissible and impermissible to advertise and solicit legal services. The ABA House of Delegates voted in 2002 to add provisions addressing advertising through new technological avenues, such as the Internet.

B. The Florida Bar's Position

The rules governing attorney advertising in Florida are contained in Subchapter 4­7, Rules of Professional Conduct (RPC), as modified by the Florida Supreme Court, effective Jan. 1, 1991, subsequently amended, Dec. 17, 1999 and May 20, 2004. In Florida, lawyers are permitted to advertise through public media, such as a telephone directory, legal directory, newspaper or other periodical, billboards and other signs, radio, television, Internet, and recorded messages the public may access by dialing a telephone number, or through written communication not involving prohibited solicitation. Generally, the rules state that a lawyer shall not make or permit to be made a false, misleading, deceptive or unfair communication.

The RPC list four types of communications deemed false, misleading, deceptive or unfair: those containing a material misrepresentation of fact or law or omitting a fact necessary to make the statement considered as a whole not materially misleading; those likely to create an unjustified expectation about results the lawyer can achieve or that imply the lawyer can achieve results by illegal or unethical means; those comparing a lawyer's service with other lawyers' services, unless the comparison can be factually substantiated; and those containing a testimonial.

Because of the unique characteristics of electronic media, the rules limit the techniques used in TV and radio advertisements. Direct mail communications, because of their invasive nature, are also subject to special restrictions. The rules mandate that, with certain exceptions, advertisements be submitted to the Bar's Standing Committee on Advertising for review and evaluation no later than simultaneously with its first publication. The rules further require lawyers to keep a copy or recording of every advertisement, regardless of medium, for three years after publication along with a record of when and where it was used.
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III. Background

In 1908, the ABA deemed lawyer advertising unprofessional and banned it. The courts supported the disapproval of lawyers who blatantly advertised for business. The Code of Professional Responsibility (1968­1986) contained an extensive list of prohibitions in advertising, such as slogans, gimmicks, garish techniques, billboards, sound trucks and extravagant media. The current Rules of Professional Conduct (RPC), consistent with court rulings, prohibit false, misleading, deceptive or unfair communication, limit the techniques used in TV and radio advertisements, and restrict the use of direct mail communication.

On Dec. 23, 1990, the Florida Supreme Court issued its opinion in The Florida Bar: Petition to Amend the Rules Regulating The Florida Bar -- Advertising Issues, 571 So.2d 451 (Fla. 1990), adopting revisions to the rules governing attorney advertising. The revised rules became effective Jan. 1, 1991, and constituted a substantial rewrite of portions of Subchapter 4­7 of the RPC.

The revisions include changes to the rules governing both advertising and direct mail communications. The amendments, among other things, restrict the techniques used in TV and radio advertisements; impose certain disclosure requirements in advertisements and direct mail communications; prohibit the use of dramatizations, testimonials and celebrities; and establish the Standing Committee on Advertising to evaluate attorney advertisements and direct mail communications.

Since then, according to the ABA, two­thirds of the states have reconsidered their rules. While some states have enacted only minor modifications, others have adopted or are considering major revisions. Lawsuits have been brought by lawyers who advertise in Florida, New Mexico and Texas challenging various aspects of the rules. Advertising regulations being employed or considered by some states include reviewing advertisements, banning or otherwise limiting testimonials and endorsements, limiting targeted direct mail, requiring disclosures on mailed material and requiring disclaimers that discourage people from selecting lawyers solely through advertisements.

On July 23, 1992, the Florida Supreme Court adopted several amendments to the rules that became effective Jan. 1, 1993. See The Florida Bar Re: Amendment to Rules Regulating The Florida Bar, 605 So.2d 252 (Fla. 1992). The amendments broaden the type of information an advertisement may contain and still remain exempt from submission to the Standing Committee for review.

The Florida Supreme Court adopted additional amendments to the attorney advertising rules, effective Dec. 17, 1999. See Amendments To Rules Regulating The Florida Bar - Advertising Rules, 762 So.2d 392 (Fla. 1999). Amendments include additional restrictions on TV and radio advertisements and new regulations for "computer- accessed" advertisements and other computer communications.

The most recent amendments to the attorney advertising rules were enacted by the Florida Supreme Court in Amendments to Rules Regulating The Florida Bar- Advertising, 971 So. 2d 763 (Fla. 2007 Case No. SC05-2194). The Supreme Court added a requirement that TV and radio advertisements must be filed for review prior to their broadcast.

A. Judicial History, U.S. Supreme Court

  • The U.S. Supreme Court's decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), established a lawyer's right to advertise. The court held that ads for routine legal services are protected by the First Amendment and distinguished ads from face­to­face solicitation.
  • In Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the court held that face­to­face solicitation could be prohibited because it was so likely to involve fraud, intimidation or overreaching and was not subject to scrutiny by the Bar or the public.
  • In the case of In re R.M.J., 455 U.S. 191 (1982), the court allowed direct mail advertising because it, like advertising in the public media, could be supervised and scrutinized by the Bar.
  • In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 105 S.Ct. 2265 (1985), the court struck down a prohibition against truthful and nondeceptive print ads aimed at persons with specific legal problems and containing legal advice. The court suggested that advertising that provides information about legal rights to persons who might otherwise be shut out from effective access to the legal system is more valuable than many other forms of advertising. The court dismissed the argument that Zauderer's advertisement concerning the Dalkon Shield may have encouraged someone to file a lawsuit. (As applied to Zauderer's newspaper ad, the decision also ruled unconstitutional Ohio's prohibition against use of drawings and illustrations in any advertisement.) Zauderer and R.M.J. , read together, made it clear that the operative distinction was between methods of advertising and solicitation that are subject to Bar supervision and are conducive to reflection and an exercise of choice on the part of a potential client, and methods that are not. The Florida Supreme Court heeded the message and allowed targeted mail solicitation effective Jan. 1, 1987. Most states and the ABA did not, which led the court to strike down a ban on targeted mail solicitation in Shapero v. Kentucky State Bar Association, 108 S.Ct. 1916 (1988). In Shapero, the court reasoned that truthful, nondeceptive direct mail solicitation letters aimed at potential clients known to face specific legal problems do not carry the risk of coercion or overreaching that characterizes face­to­face solicitation.
  • To date the Court has continued to permit the states to impose more restrictions on TV advertising than on print advertising. The U.S. Supreme Court in 1986 dismissed, for want of a substantial federal question, a challenge to Iowa's disciplinary rules prohibiting use of background sound, visual displays and more than a single nondramatic voice in TV advertisements. Humphrey v. Committee on Professional Ethics and Conduct, 106 S.Ct. 1626 (1986). The Iowa Supreme Court had held that Zauderer did not require a retreat from its stringent rules on TV advertising. Committee on Professional Ethics and Conduct v. Humphrey, 377 N.W.2d 643 (Iowa 1985).
  • In Peel v. Attorney Registration and Disciplinary Commission of Illinois, 110 S.Ct. 281 (1990), the court held that a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by the National Board of Trial Advocacy. The court found that advertising this certification was not actually or inherently misleading, nor did the Court find evidence that the advertising was potentially misleading so as to justify some requirement that the information be presented in a way that is not deceptive.
  • In 1994, the U.S. Court of Appeals for the Eleventh Circuit affirmed a trial court decision striking down as unconstitutional a 30­day waiting period on the use of direct mail solicitation in personal injury and wrongful death matters. McHenry v. The Florida Bar, 21 F.3d 1039 (11th Cir., 1994), affirming 808 F.Supp. 1543 (M.D. Fla. 1993). The Florida Bar successfully sought review in the U.S. Supreme Court, which upheld The Florida Bar's 30-day ban on direct mail solicitation to personal injury and/or accident victims and their families in The Florida Bar v. Went for it Inc., John T. Blakely, 115 S.Ct. 2371 (1995).

B. ABA Involvement

The American Bar Association Commission on Advertising has developed "Aspirational Goals for Lawyer Advertising." The product of nearly two years of study, the goals "seek to identify factors that can contribute to effective lawyer advertising while minimizing its potential negative impact on the public and the profession." The commission adds that the goals are not intended to establish mandatory requirements that might be used for disciplinary action. The major goals state that:
  • Advertising should encourage and support the public's confidence in individual lawyers and the legal profession.
  • Compliance with the goals will bring "dignity" and "good taste" to advertising.
  • Ambiguous or confusing advertising can be misleading, particularly in describing fees and costs.
  • Advertising should avoid "inappropriately dramatic music, unseemly slogans, hawkish salespersons, premium offers, slapstick routines or outlandish settings."
  • Lawyers who advertise should use marketing professionals to target audiences and present clear messages.
  • That advertising should be designed to attract legal matters the lawyer is competent to handle.
  • That lawyers should design advertising to build client bases in order to make legal services more affordable to the public.

Beginning in 1992, the Commission on Advertising inaugurated the "ABA Awards for Dignity in Lawyer Advertising.'' According to the commission, the annual awards are ". . . part of its long­standing campaign to encourage dignity for those lawyers and firms that include advertising as part of their marketing.''

In 1995, the ABA's Commission on Advertising complete its study: "The Impact of Advertising on the Image of Lawyers: A Mass Intercept Study."

In 1997, the ABA Commission on Advertising identified 21 active lawyer advertising committees.

Some states, including Florida, have examined advertising over the Internet and through e­mail. Regulations governing these activities were adopted by the Florida Supreme Court on Dec.17, 1999. In 1996, Tennessee became the first state to discipline a lawyer for e­mail solicitations, known as spamming.

C. The Florida Bar

The Board of Governors in January 1985 voted to maintain its regulatory jurisdiction over advertising, solicitation and ethics and to continue to monitor them to the maximum extent the courts will allow. The board adopted the Long Range Planning Committee's recommendation that the Bar protect the public from false and misleading ads, "bait and switch," and similar practices. In May 1985, the board voted that the Bar should assemble guidelines, but not compile or create sample ads for lawyers.

The Florida Bar's experience with advertising and solicitation, particularly in personal injury cases in early 1987, led to efforts to strengthen the rules regulating that conduct. In 1987, The Florida Bar president appointed both a Special Committee on Solicitation and a Commission on Advertising to investigate advertising and direct solicitation practices and to draft rules to deal with excesses by Florida lawyers. The two committees were merged to create the Commission on Advertising and Solicitation, whose work resulted in a Nov. 7, 1989 petition by The Florida Bar requesting the Florida Supreme Court to make certain changes in the rules governing lawyer advertising and solicitation. This petition culminated in the Florida Supreme Court's decision in The Florida Bar: Petition to Amend the Rules Regulating The Florida Bar -- Advertising Issues, 571 So.2d 451 (Fla. 1990).

Beginning on Jan. 1, 1991, the Standing Committee on Advertising began the advertising review process required by the revised rules. As of July 1, 1999, the Standing Committee had received approximately 32,850 submissions for evaluation.
Following the decision in The Florida Bar v. Went for it Inc. 115 S.Ct. 2371 (U.S. 1995), upholding Florida's 30-day ban on direct mail solicitation to personal injury and/or accident victims and their families, The Joint Presidential Advertising Task Force was appointed to evaluate The Florida Bar's advertising rules and recommend any necessary changes. Many of the Task Force recommendations were approved by the Florida Supreme Court in Amendments To Rules Regulating The Florida Bar - Advertising Rules, 762 So.2d 392 (Fla. 1999).
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IV. Facts/Statistics

Every other year, The Florida Bar conducts a random sampling survey of its members on a wide range of topics important to their practice of law including whether they advertise and in which media. Here are some of the response regarding advertising.

Results of The Florida Bar's 2007 Membership Opinion Survey revealed:

73 percent of attorneys in private practice advertise in the Yellow Pages
44 percent advertise on the Internet
22 percent advertise in newspapers
19 percent use direct mail
19 advertise in magazines
11 percent advertise on radio
10 percent advertise on TV
8 percent use billboards

Results of The Florida Bar's 2005 Membership Opinion Survey revealed:

72 percent of attorneys in private practice advertise in the Yellow Pages
44 percent advertise on the Internet
25 percent advertise in newspapers
19 percent use direct mail
14 advertise in magazines
9 percent advertise on radio
13 percent advertise on TV
8 percent use billboards

Results of The Florida Bar's 2003 Membership Opinion Survey revealed:

73 percent of attorneys in private practice advertise in the Yellow Pages
41 percent advertise on the Internet
22 percent advertise in newspapers
16 percent use direct mail
12 advertise in magazines
6 percent advertise on radio
8 percent advertise on TV
5 percent use billboards

Results of The Florida Bar's 2001 Membership Opinion Survey revealed:

69 percent of attorneys in private practice advertise in the Yellow Pages
31 percent advertise on the Internet
24 percent advertise in newspapers
11 percent use direct mail
12 advertise in magazines
9 percent advertise on radio
9 percent advertise on TV
5 percent use billboards

From January 1991 through June 2004, The Florida Bar’s Ethics and Advertising Department has reviewed almost 47,000 advertisements. That number includes: 20,518 print ads (including yellow pages, billboards, newspaper, brochures, newsletters and other print ads); 10,965 direct mail filings; 8,528 television and radio ads; and 2,114 miscellaneous ad (including Internet, phone tips, etc.).

Prepared by The Florida Bar Department of Public Information and Bar Services with assistance by the Lawyer Advertising Department.
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[Revised: 10/20/08]