• Lawyer Regulation

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• Advertising Regulation

Websites were not originally explicitly addressed by the lawyer advertising rules. While that was the case, the Standing Committee on Advertising determined that the homepage of a website was subject to all of the substantive lawyer advertising rules including the filing requirement. The remainder of a website was considered exempt from the filing requirement, although not necessarily exempt from application of the lawyer advertising rules.

The Supreme Court of Florida (“the Court”) first adopted rules that explicitly regulated websites in 1999. Amendments to Rules Regulating The Florida Bar - Advertising Rules, 762 So. 2d 392 (Fla. 1999). Rule 4-7.6(b) provided that homepages and websites must disclose all jurisdictions where the advertising lawyer was licensed to practice, must disclose the geographic location of a bona fide office by city or town, and were otherwise considered information “upon request” subject to then-rule 4-7.9.

At that time, information “upon request” was regulated in its own rule (then rule 4-7.9), which stated that information “upon request” was subject to all of the substantive lawyer advertising rules except for the prohibition on statements characterizing the quality of legal services and the prohibition against referring to past results. Information “upon request” was also exempt from the filing requirement. Websites were also made exempt from the filing requirement in a separate subdivision of rule 4-7.8.

The bar filed a petition to amend the Rules Regulating The Florida Bar (Advertising Rules) in case number SC05-2194 on December 14, 2005. Among the changes requested by the bar was a proposal to delete the rule regulating information “upon request” in its entirety (rule 4-7.9), while adding a provision to rule 4-7.1 that would exempt information “upon request” from application of the lawyer advertising rules. That proposal would subject information “upon request” only to the general prohibition against conduct involving deceit, dishonesty, or misrepresentation found in rule 4-8.4(c). The Court adopted that proposal. In re: Amendments to the Rules Regulating the Florida Bar - Advertising, 971 So. 2d 763 (Fla. 2007).

In that case, the Court declined to adopt any changes to rule 4-7.6 (Computer-Accessed Communications) because the bar had informed the Court that the bar had appointed a special committee to study website regulation. The effect of the Court’s actions in case number SC05-2194 was to change the way in which websites were regulated. After the effective date of the Court’s final order in case number SC05-2194, websites became information “upon request” under the plain language of rule 4-7.6(b) and therefore subject to none of the substantive advertising rules applicable to all advertising media.

After further study, the bar then filed another petition to amend rule 4-7.6 in case number SC08-1181 on February 26, 2008. In this petition, the bar requested that the Court amend rule 4-7.6(b). The bar’s proposal would require that a website’s homepage comply with all substantive lawyer advertising rules set forth in rule 4-7.2. The remainder of the website would also be subject to all of the substantive lawyer advertising rules set forth in rule 4-7.2 with 3 exceptions: statements characterizing the quality of legal services, references to past results, and testimonials would be permissible if truthful, and in the latter 2 exceptions, if accompanied by a disclaimer. That result would not be the same as making the remainder of the website information “upon request,” in which no substantive lawyer advertising regulation would apply.

In its petition, the bar acknowledged that the proposal was a compromise position. The bar also acknowledged that both the bar’s Citizens Forum and the bar’s special committee recommended that all substantive advertising regulations found in rule 4-7.2 apply to all portions of a website. The only disagreement between the Citizens Forum recommendation and the special committee recommendation was whether the filing requirement should apply to websites.

The Court initially rejected all of the bar’s amendments to Rule 4-7.6 and left the rule unchanged. In Re: Amendments to Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, 34 Fla. L. Weekly S261 (Fla., Feb. 27, 2009). The Court then issued a revised opinion adopting amendments to Rule 4-7.6 Computer Accessed Communications. In Re: Amendments to Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, 34 Fla. L. Weekly S627 (Fla. Nov. 19, 2009), Case No. SC08-1181. Under the new rule, websites will be subject to all regulations set forth in Rule 4-7.2, including prohibitions against past results, testimonials, and statements characterizing the quality of legal services. Websites will remain exempt from the filing requirement under Rule 4-7.8(f).

The bar submitted a letter to this Court on February 26, 2010, to inform the Court of guidelines adopted by the Standing Committee on Advertising regarding making a portion of a lawyer or law firm website information “at the request of the prospective client” under rule 4-7.1(f), R. Regulating Fla. Bar, and therefore not subject to the lawyer advertising rules set forth in subchapter 4-7, R. Regulating Fla. Bar. Under the guidelines, a lawyer would be permitted to have truthful information, including testimonials and past results, if accessible to a viewer only by going through a disclaimer page that requires the viewer to read and acknowledge receipt of specific disclaimers about the information posted on the page.

The Court responded to the bar’s letter by rejecting the guidelines and issuing an order reopening this case for the limited purpose of permitting the bar to move to amend rule 4-7.6(b) consistent with the guidelines described in paragraph 4 above on March 31, 2010. The bar filed a motion to further amend rule 4-7.6(b) as directed by the Court on June 1, 2010 in case number SC08-1181. The Court assigned the bar’s filing new case number SC10-1014, which is currently pending.

The bar simultaneously filed a motion to stay the effective date of the Court’s order amending rule 4-7.6 in case number SC08-1181, pending the Court’s ruling on the additional amendments to rule 4-7.6(b) in case number SC10-1014. The Court granted the bar's motion to stay the effective date indefinitely.

The bar, at the direction of the Court in 2007, undertook a study of lawyer advertising, including current practices and public attitude toward lawyer advertising. As a result of this study, the bar filed amendments to all the lawyer advertising rules on July 5, 2011, case number SC11-1327. These amendments, if adopted, would treat lawyer and law firm websites the same as any other advertising media, with the exception of the filing requirement. More information about these proposed amendments is available on the bar’s website (under “Notices” on the “Advertising Rules” page) and at the Supreme Court of Florida’s website on the Clerk’s page (under Rules Cases, using the year and case number).