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October 15, 2017

Advertising Update
Prepared by the Staff of The Standing Committee on Advertising
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RECENT DECISIONS OF THE BOARD OF GOVERNORS ON ADVERTISING


The Board of Governors of The Florida Bar considers appeals from opinions of the Standing Committee on Advertising. The board’s recent decisions on advertising are as follows:

1. Prediction of Results
Rule 4-7.13(b)(1) prohibits any statement in lawyer advertising that a consumer can reasonably interpret as a prediction or guaranty of success or specific results the lawyer can achieve. The board affirmed the committee’s decision determining that the following language can be reasonably interpreted by a consumer as a prediction of success in violation of Rule 4-7.13(b)(1):

Results So Good, You’ll Think It’s Magic!

The board reversed the committee’s decision determining that the image of a wizard and the name “Ticket Wizard” cannot be reasonably interpreted by a consumer as a prediction of success and is permissible under Rule 4-7.13(b)(1). However, the board affirmed the committee’s decision that the image of a wizard and the name “Ticket Wizard” characterize the lawyer or law firm’s skills, experience, reputation or record under Rule 4-7.13(b)(3), but that the law firm can use the image and name only if the law firm can objectively verify that implication.

2. Firm Name
Every advertisement must contain the name of at least one lawyer, the law firm, or lawyer referral service responsible for the advertisement’s content. Rule 4-7.12(a)(1). The board reversed the committee’s decision determining an Internet banner advertisement that contains the abbreviated name Smith Jones, instead of the firm’s legal name Smith, Jones, Green, Brown & Blue, P.A., is permitted where the firm name is a traditional law firm name composed solely of names of the partners or shareholders of the firm in which the firm name is shortened, but the order of names is not changed, and the firm has registered the abbreviated firm name as a fictitious name of the firm.
RECENT DECISIONS OF THE STANDING COMMITTEE ON ADVERTISING

At the committee’s recent meeting it made the following decisions on appeals from staff opinions on lawyer advertising:

1. Prediction of Results
Rule 4-7.13(b)(1) prohibits any statement in lawyer advertising that a consumer can reasonably interpret as a prediction or guaranty of success or specific results the lawyer can achieve. The committee determined that the following language can be reasonably interpreted by a consumer as a prediction of success in violation of Rule 4-7.13(b)(1):

I know how to turn no to yes!

The committee determined that the following language is permissible and cannot be reasonably interpreted as a prediction or guarantee of success or specific results under Rule 4-7.13(b)(1) when the advertising lawyer is offering a “protocol handbook”:

A protocol handbook can help eliminate liability (both tortious and regulatory), as well as contribute to growing your business within a region or even within the nation.
The committee also determined that the following language is permissible when placed in front of an image of a couple embracing while wearing bathing suits in the context of an advertisement to handle divorce cases, under Rule 4-7.13(b)(1), because it cannot be reasonably interpreted by a prospective client as a prediction or guaranty of success or specific results:

DO BETTER.
He thought he could.
You can.

Additionally, the committee determined that the above statement is not a comparison of the lawyer’s services under Rule 4-7.13(b)(3) because the statement is not about the law firm.

2. Clearly Legible
All information required to be included in an advertisement must be clearly legible and reasonably prominent. Rule 4-7.12(d). Additionally, every advertisement must contain the name of a city, town or county where the advertising lawyer has a bona fide office. Rule 4-7.12(a)(2). The committee determined that the geographic disclosure in a print advertisement was not clearly legible and reasonably prominent as required by Rules 4-7.12(a)(2) and 4-7.12(d) because it is buried in a paragraph of disclaimers. However, the committee determined that the revised geographic disclosure was clearly legible and reasonably prominent in both print and television although it appears in a paragraph of information that includes disclaimers required by other states because it is in bold print and underlined.

3. Dramatization
Advertisements using dramatizations of actual or fictitious events must contain the prominently displayed disclosure: “DRAMATIZATION. NOT AN ACTUAL EVENT.” Rule 4-7.13(b)(6). The committee has determined that the dramatization disclosure is not required in a television advertisement in which the dramatization is so obviously a fiction where thought bubbles appear above the people’s heads and are snatched away.

4. Characterizes Skills, Experience, Reputation or Record
Rule 4-7.13(b)(3) prohibits advertisements that contain statements, words or phrases that characterizes the lawyer or law firm’s skills, experience, reputation or record unless it is objectively verifiable. The committee determined that the following italicized language is a general statement about choosing a lawyer and not a direct statement of the advertising lawyer’s skills, experience, reputation or record under Rule 4-7.13(b)(3) and therefore is permitted:

When I say good representation is no accident, what I mean is that you shouldn’t take lightly your choice of who you wish as an attorney. So good representation is something that is done through years of hard work, determination to represent the person fully and it’s not just…you happen upon a lawyer accidentally.

5. Solicitation
The committee determined that a lawyer who has received a referral from a lawyer referral service that is otherwise compliant with the requirements of Rule 4-7.22 may use Ringless Direct-to-Voicemail technology to directly contact a prospective client when the prospective client affirmatively has checked the following box on the website:

□ By checking this box you agree to be contacted by an attorney.

The information provided in this column is for educational purposes. The content of any advertisement noted in this article may constitute the intellectual property of the advertising lawyer or another person and use of any of the content of the advertisements may require permission of the copyright holder. If you have any questions regarding lawyer advertising, call the Ethics Hotline at 1-800-235-8619 and we will be happy to assist you. You may also review the advertising rules and sample advertisements on the Bar’s website at www.floridabar.org.

[Revised: 12-08-2017]