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July 1, 2005
Board revisits Web site advertising regulations

The question is whether firm sites should be treated as advertising or information
requested by potential clients
By Gary Blankenship
Senior Editor
The Bar Board of Governors has reconsidered a proposed advertising rule amendment on attorney Web sites and decided to make no change for the present while a new committee studies the issue.

The board acted at its June 3 meeting in Palm Beach after hearing from a special committee appointed by outgoing Bar President Kelly Overstreet Johnson.

The issue arose following board action at its April meeting on recommendations from the Advertising Task Force 2004.

Currently, Bar rules treat Web sites as information provided at the request of a potential client, and exempts the sites from the prohibition about discussing results of past cases or making statements characterizing the firm’s quality of legal services. Firms are also exempted from the requirement of filing the Web sites with the Bar for review.

The task force had recommended exempting Web sites from all ad regulations, although they would still fall under rules requiring that communications not be false, misleading, or deceitful. Board members in April, however, rejected that, saying in an increasingly technological world Web sites are likely to be the Yellow Pages of the future.

The board instead approved a motion that the sites be subject to all advertising rules, except the requirement that they be filed with the Bar for review.

Manny Morales, who chaired the Advertising Task Force 2004 and the special committee appointed by Johnson, said no one appreciated what a drastic change was made from the current rule when the board motion replaced the task force’s recommendation.

“We decided that what we ought to do is maintain the status quo, which is Web sites are subject to the advertising rules with two exceptions, which allows . . . references to past results and statements that characterize the quality of a lawyer’s services,” Morales said. The panel also recommended that another committee be created just to study regulation of Web sites, he said.

Board member Mike Glazer, who also served on the special committee, agreed the effect of the April vote went further than anyone intended.

“You can list the cases that you’ve won [under the current rule] which you wouldn’t be able to do under the vote we took last time,” he said. “You can say, ‘We’ll do a nice job for you,’ and you couldn’t do that under what we did last time.

“The sense of this committee was we need to get back to where we were and let’s get another group that will focus specifically on this and bring recommendations back in the next Bar year.”

Board member Ian Comisky warned that regulating Web sites will be complex, involving questions of multijurisdictional practice and raising questions about where the sites for multi-state firms are located.

Board member Murray Silverstein, who, along with board member Robert Rush and Young Lawyers Division incoming President Jamie Moses made the motion at the April meeting that Web sites should be subject to ad rules, said the three agreed with the special committee’s recommendation. He said the intent was to have Web sites included in the advertising rules.

The board voted to reconsider its April vote on that issue and then unanimously accepted the special committee’s recommendation.

Incoming Bar President Alan Bookman told the board he welcomed suggestions on who should serve on the new committee that will study Web site regulation. He said that panel would include board members Chobee Ebbets, who was vice chair of the advertising task force, Mayanne Downs, and Comisky.

Morales cautioned that the new committee faces a tough task, saying, “If regulating lawyer advertising is like herding cats, regulating lawyer advertising on the Web is like herding wild, wild cats.”

On a related issue, the board approved a technical change to proposed new rule 4-7.2(c)(1)(G), which would prohibit lawyers from making statements that “guarantee results.” The board approved the committee’s suggestion to switch “guarantee” to “promise.” The proposed new rule replaces a section which prohibits a lawyer from making statements that create an “unjustified expectation about the results the lawyer can achieve.”

[Revised: 11-11-2017]