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II. Bar Position
IV. Facts and Statistics
On January 1, 1987, the Rules of Professional Conduct took effect. One small part dealt with direct mail solicitation -- basically conforming with pronouncements of the U.S. Supreme Court that suggested an absolute ban on targeted mail solicitation was not constitutionally permissible.
In June 1987, newspaper articles surfaced about attorneys seeking clients through targeted mail solicitation. The stories told of South Florida attorneys who would request accident reports and other public records, then mail letters to accident victims and others offering their services. Officials complained the public records law was being abused by attorneys who used such information to drum up business. "Ambulance chasing" was one of the descriptive phrases employed by the media for this activity.
II. Bar Position
A. American Bar Association Position
In 1988, when the U.S. Supreme Court rendered its decision in Shapero v. Kentucky Bar Association (see "Judicial History" below), ABA Model Rule 7.3 prohibited targeted mail solicitation. Nine months after Shapero, the ABA amended its Model Rule 7.3 to permit targeted mail solicitation.
B. The Florida Bar Position
The rules governing attorney solicitation can be found in the Rules of Professional Conduct (Chapter 4) of the Rules Regulating The Florida Bar, specifically, Rule 47.4 entitled "Direct contact with prospective clients." The rule prohibits lawyers from soliciting professional employment from a prospective client with whom the lawyer has no family or prior professional relationship if the attorney hopes to make money, unless the solicitation is in the form of a written communication authorized by paragraph (b) of the rule. The rule expressly prohibits contact in person, by telephone, facsimile, or telegraph.
Rule 4-7.4(b) describes the types of written communications with prospective clients that are permissible and lists certain requirements that must be met by any written communication sent to prospective clients. For example, the letter and the envelope must be marked "advertisement" in red; the communication must contain a statement of the attorney's qualifications; and a copy of the letter must be sent to the Standing Committee on Advertising and kept on file by the lawyer. Generally, the rule allows written communications that are not false, misleading or deceptive. Written communications may not be sent to persons who have made known to the lawyer their wish not to receive communications and persons the lawyer knows or reasonably should know have already obtained counsel in the specific matter in question. In addition, if the written communication concerns an action relating to an accident or disaster involving the recipient or a relative of the recipient, the communication may not be sent until 30 days after the accident or disaster.
Florida is among the first states to adopt rules regulating advertising through e-mail. The Florida Supreme Court adopted Rule 4-7.6(c) in Amendments To Rules Regulating The Florida Bar - Advertising Rules, 762 So.2d 392 (Fla. 1999). The new rule regulates e-mail in substantially the same way as direct mail communication, requiring that the subject line of the e-mail state "Legal Advertisement" and prohibiting e-mail within 30 days of an accident or disaster.
Lawyer advertising was deemed unprofessional by the ABA and was banned in 1908. The courts supported the Bar in this disapproval of lawyers who blatantly advertised for business. The Code of Professional Responsibility, in effect in Florida from 1970 to 1986, contained an extensive list of prohibitions in advertising, such as slogans, gimmicks, garish techniques, billboards, sound tracks and extravagant media.
The face of lawyer advertising forever changed with the U.S. Supreme Court's Bates decision in 1977 (see "Judicial History" below). This decision represented the culmination of two modern trends: the rights and needs of attorneys to advertise and the rights and needs of the public to receive information about legal services.
However, direct solicitation of prospective clients (by mail or in person) continues to be more tightly regulated than general advertising. Florida's current rules strictly prohibit contact in person or by phone and impose some restrictions on direct mail contact because there is a potential for abuse when a lawyer can directly solicit a person known to need legal services. Prospective clients may be vulnerable because of a situation (foreclosure, tragic accident, etc.) and have a limited capacity for protecting their selfinterest. Also, an attorney's advice may be colored by his or her own selfinterest in gaining the retainer. "The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. . . . Advertising is out in public view, thus subject to scrutiny. . . . Direct private communications . . . are not subject to such thirdparty scrutiny and consequently are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.'' The Florida Bar Amendment to Rules, 605 So.2d 252 (Fla. 1992).
Florida is among the first states to regulate advertising over the Internet and through e-mail. The Florida Supreme Court adopted Rule 4-7.6 in 1999, addressing Internet through the rules regulating attorney advertising for the first time. Amendments To Rules Regulating The Florida Bar - Advertising Rules, 762 So.2d 392 (Fla. 1999).
A. Legislative History
Several Florida laws restrict solicitation of clients by Florida lawyers. Section 877.02(1), Florida Statutes, makes it unlawful for any person or his or her agent to solicit or procure through solicitation legal business, directly or indirectly. Any person violating the section shall be guilty of a first degree misdemeanor. To the extent that this statute criminalizes attorney conduct prohibited by the ethics rules adopted by the Florida Supreme Court, the Court has upheld its application to attorneys. Pace v. State, 368 So.2d 340 (Fla. 1979) (antisolicitation statute as applied to lawyers does not violate State Constitution); See also, Carricarte v. State, 384 So.2d 1261 (Fla. 1980) (lawyer antisolicitation statute not unconstitutionally overbroad or vague).
Section 817.234(9), Florida Statutes, makes it a third degree felony for a lawyer to solicit any business relating to the representation of persons injured in a motor vehicle accident for the purpose of filing a tort claim or a claim for PIP (personal injury protection) benefits, but makes an exception for advertising permitted by the Florida Supreme Court in the ethics rules. In 1998, this provision withstood a challenge based on the Equal Protection Clause of the U.S. or Florida Constitution. State v. Falk, 724 So. 2d 146 (Fla. 3d DCA 1998).
Sections 316.066(3)(c) and 316.066(4), Florida Statutes, prohibit the use of traffic accident reports made by law enforcement officers or persons involved in accidents for commercial solicitation purposes. Both provisions explain that publication in a newspaper or other news periodical or a radio or television broadcast shall not be construed as "commercial purpose." Courts in other jurisdictions have found similar statutes unconstitutional. See, e.g., Amelkin v. McClure, 168 F.3d 893 (6th Cir. 1999) (U.S. Court of Appeals for the Sixth Circuit determined that Kentucky statute banning use of vehicle accident reports for commercial solicitation, with certain specific exceptions, violated the First Amendment); and Zackheim v. Forbes, 895 P.2d 793 (Or. App. 1995) (Court of Appeals of Oregon struck down state statute forbidding use of accident reports for commercial solicitation purposes, with certain enumerated exceptions). Compare, DeSalvo v. State of Louisiana, 624 So. 2d 897 (La. 1993) (Supreme Court of Louisiana upheld constitutionality of statute limiting access to motor vehicle accident reports and preventing attorneys from accessing records for purpose of mass direct mail solicitations).
In addition, Section 316.650(11), Florida Statutes, forbids the use of information contained in traffic citations to solicit business. Exceptions are made for driving schools and news media. In 1996, the U.S. District Court for the Southern District of Florida found this statute unconstitutional because it did not directly advance the government's asserted interests in preserving privacy, not aiding in dissemination of information for commercial purposes, lessening dangers of solicitation abuse, and maintaining public support of the legal profession). Babkes v. Satz, 944 F.Supp. 909 (S.D. Fla. 1996).
Finally, Section 119.105, Florida Statutes, forbids use of information obtained from nonconfidential police reports for commercial solicitation of accident or crime victims or their relatives. An exception is made for use of such information by news media or other date collection or analysis purposes. A similar Georgia statute was struck down as unconstitutional. Speer v. Miller, 15 F.3d 1007 (11th Cir. 1994) (U.S. Court of Appeals for the Eleventh Circuit found Georgia statute prohibiting inspection of law enforcement records for commercial solicitation of crime victims, persons charged with crimes, or persons involved in motor vehicle accidents was not narrowly tailored to serve the State's interests and thus did not pass Constitutional scrutiny). See also, United Reporting Publishing Corp. v. Lungren, 946 F. Supp. 822 (S.D. Cal. 1996), affirmed, 146 F. 3d 1133 (9th Cir. 1998) (California statute limiting commercial users' access to arrestee addresses was an unconstitutional limitation on commercial speech); and Ficker v. Curran, 950 F. Supp. 123 (D. Md. 1986), affirmed, 119 F.3d 1140 (4th Cir. 1997) (Maryland's 30-day ban on written communications with persons charged with criminal offenses or jailable traffic offenses unconstitutional).
B. Judicial History
In Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222 (1975), the U.S. Supreme Court held that speech is not stripped of First Amendment protection merely because it appears in the form of a paid commercial advertisement. The case actually related to a newspaper's printing of an ad for abortion services, which was contrary to a state law making it a misdemeanor to encourage the procuring of an abortion.
Virginia Citizens Consumer Council v. Virginia State Board of Pharmacy, 425 U.S. 748 (1976), is a U.S. Supreme Court decision involving a state law that declared price advertising for prescriptions to be unprofessional conduct. The Court held that the total ban on the truthful advertising of an entirely lawful activity was not justified under the First Amendment, but expressly limited its holding to advertising by pharmacists.
In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), U.S. Supreme Court specifically addressed advertising by attorneys. Two lawyers operated a "legal clinic" that accepted routine cases for modest fees. To generate the volume of business needed, the firm found it necessary to advertise, which violated an attorney disciplinary rule. The attorneys were disciplined for placing an ad which listed services and fees. The court held that lawyers must be permitted to advertise the fees they charge for certain routine services. The court concluded this sort of price advertising was not inherently misleading and therefore could not be prohibited on that basis. But the Bates decision emphasized that advertising by lawyers could still be regulated.
In Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the U.S. Supreme Court upheld a ban on inperson solicitation of clients for pecuniary gain. In this case, an Ohio attorney was soliciting accident victims in their homes and in the hospital. A subsequent decision in the same year, In re Primus, 436 U.S. 412, 98 S.Ct. 1893 (1978), upheld the right of solicitation by nonprofit organizations that engage in litigation as a form of political association.
In re R.M.J., 455 U.S. 191 (1982), a 1982 U.S. Supreme Court decision, finally approved direct mail advertising (as distinguished from targeted direct mail solicitation), effectively wiping out the classic distinction between advertising in the public media and advertising using other media. In this case, Missouri attorney regulations allowed announcement cards to be sent only to lawyers, clients, former clients, personal friends and relatives. R.M.J. was disciplined for sending announcement cards to persons not falling into the specified categories. With no proof that the state would be unable to reasonably supervise general mailings of advertisements or announcements, the Court struck down Missouri's absolute ban on such mailings. The Court suggested ways in which the state could accomplish supervision and protect members of the public who are unaccustomed to receiving letters from lawyers.
In Zauderer v. The Office of Disciplinary Counsel of the Supreme Court of Ohio, 105 S.Ct. 2265 (1985), the U.S. Supreme Court held an attorney cannot be disciplined for a newspaper advertisement geared to persons with a specific legal problem as long as there is nothing misleading or deceptive in the ad. The attorney in the case was disciplined after placing newspaper ads featuring a drawing of the Dalkon Shield Intrauterine Device. The ad solicited women who may have been harmed by the IUD. Other points the court made in this case include: 1) advertising is different from inperson solicitation because it lacks the coercive force of a personal encounter; 2) certain illustrations or pictures are entitled to First Amendment protection; 3) preserving the dignity of the profession is not a sufficient reason to ban the use of illustrations; and 4) in contingent fee cases, there should be some sort of disclaimer that the losing party will be liable for costs.
The U.S. Supreme Court, in Shapero v. Kentucky Bar Association, 108 S.Ct. 1916 (1988), rejected the ABA/Kentucky distinction between general mailings of advertisements and selective mailing of solicitation letters to persons known to need the legal services offered. The Court ruled that "the First Amendment does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable." The Court found targeted direct mail solicitation to be comparable to newspaper advertising rather than to inperson solicitation in that mail solicitation poses much less risk of overreaching or undue influence and is subject to bar scrutiny and regulation by way of a filing requirement.
In May 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 Bar successfully sought review in the U.S. Supreme Court. The Court 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). See also, Moore v. Morales, 63 F.3d 358 (5th Cir. 1995) (Texas' 30-day ban on direct mail communication to accident victims and their families does not violate First Amendment). The U.S. Court of appeals for the Fourth Circuit struck down a statute which extended the 30-day ban on direct mail to persons charged with criminal offenses in Ficker v. Curran, 950 F. Supp. 123 (D. Md. 1986), affirmed, 119 F.3d 1140 (4th Cir. 1997) The court found that the situation was distinguished from direct mail to accident victims because persons charged with crimes have an interest in obtaining information regarding legal services, time is of the essence in criminal matters, and persons charged with crimes have already been subjected to an invasion of their privacy.
C. Florida Bar Involvement
At the end of 1987, the Bar's Special Committee on Solicitation submitted its report and recommendations to the Board of Governors. The Committee recommended that the ban on targeted mail solicitation be reinstated for personal injury and wrongful death cases only. Among the Committee's other recommendations was a proposed rule subjecting lawyers to forfeiture of fees gained in cases obtained in a manner violating the rules governing solicitation. The Board adopted the Committee's recommendations and filed them with the Florida Supreme Court. The Board subsequently withdrew the proposed rule amendments, however, in June 1988 after the U.S. Supreme Court struck down Kentucky's absolute ban on targeted mail solicitation in Shapero v. Kentucky State Bar Association, 108 S.Ct. 1916 (1988). The Special Committee on Solicitation then merged with the Commission on Advertising, which had been studying other advertising rules. The Commission presented its proposed rule changes relating to all types of advertising and solicitation to the Bar's Board of Governors, which approved the proposals in September 1989. In November 1989, the Bar filed with the Florida Supreme Court a petition to amend the attorney advertising and solicitation rules. The Court issued a ruling in December 1990 adopting, with only minor modifications, the proposals urged by the Bar. The Florida Bar: Petition to Amend the Rules Regulating The Florida Bar -- Advertising Issues, 571 So. 2d 451 (Fla. 1990). These amendments became effective January 1, 1991.
On December 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 January 1, 1991, and constitute a substantial rewrite of portions of Subchapter 47 of the Rules of Professional Conduct. The revisions include imposing certain disclosure requirements in direct mail communications and establishing the Standing Committee on Advertising to evaluate advertisements.
On July 23, 1992, the Florida Supreme Court adopted several amendments to the rules which became effective January 1, 1993. See, The Florida Bar Re: Amendment to Rules Regulating The Florida Bar, 605 So.2d 252 (Fla. 1992). The effect of the amendments, among other things, is to broaden the type of information an advertisement may contain and still remain exempt from submission to the Standing Committee for review.
Then in 1995, immediately following the decision in The Florida Bar v. Went for it Inc. 115 S.Ct. 2371 (1995), The Florida Bar's Joint Presidential Advertising Task Force was appointed to evaluate Florida's lawyer advertising rules and recommend any necessary changes. The Task Force spent almost two years studying the advertising rules and drafting proposed rule changes, many of which were approved by the Board of Governors and adopted by the Florida Supreme Court in Amendments To Rules Regulating The Florida Bar - Advertising Rules, 762 So.2d 392 (Fla. 1999).
IV. Facts and Statistics
- In The Florida Bar's 2003 Membership Opinion Survey, 4% of total attorneys who responded said they use direct mail in their practice. Of the respondents who advertise, 16% said they utilize direct mail.
- The Florida Bar's 1994 Membership Opinion Survey asked respondents whether they advertised their services through direct mail; 3.1% responded that they utilize direct mail.
- The Florida Bar's 1999 Member Opinion Survey showed that 58% (3/5) of attorneys agree that current restrictions on advertising are enforced at an effective level by the Bar.
- Since January 1, 1991, the effective date of the revised advertising and solicitation rules, the Standing Committee on Advertising has received almost 11,000 direct mail filings.
- In 1996, Tennessee became the first state to discipline a lawyer for e-mail solicitations, known as spamming.
Prepared by The Florida Bar Department of Public Information and Bar Services with assistance by Lawyer Advertising Department.