Over the past several years in particular, the Board of Governors of The Florida Bar and its officers have been spending a great deal of time implementing regulation of attorney advertising. Witness our Bar President Eugene Pettis’ message devoted entirely to this topic in the February 2014 issue of The Florida Bar Journal. As I pointed out in my letter to the editor in the February 1 Florida Bar News, the attempted detailed regulation of lawyer advertising by “objective” criteria determined by a Bar committee is antithetical to the guarantees of freedom of speech under the federal and Florida constitutions — and also contrary to the common sense of business realities. Regulation on a case-by-case basis of materially misleading or false claims should be where the focus is, rather than an attempt to define what “speech” is permitted by in effect imposing prior restraint. The cases cited in my Bar News letter go back to Bates v. Arizona Bar, when lawyer advertising had been banned before the U.S. Supreme Court overturned that prohibition. As I also pointed out, since that time, “the sky has not fallen.” With all of the Bar advertising rules and charges, however, the view of the sky is impeded as lawyers seek to provide legal services to the community at large. The proper approach to this issue is the most simple and obvious one: Regulate those claims shown to be materially inaccurate rather than promulgating a series of rules that confuse the very matters the Bar seeks to regulate.
Paul A. Lester, Miami
Bacardi and Berlinger
Editor’s Note: As the March issue of the Journal went to press, the ruling in Berlinger v. Casselberry cited by Barry A. Nelson in “Bacardi: The Hangover” had not yet been deemed final due to a rehearing motion filed in December 2013 that has yet to be ruled upon. However, it is suggested that practitioners should still consider whether a trust jurisdiction other than Florida is preferable.