The debate centered on websites, testimonials, and past results
By Gary Blankenship
A rewrite of Bar advertising rules to allow the use of “objectively verifiable” past results and testimonials, but also to continue to define lawyer websites as advertising, went before the Supreme Court in oral arguments September 7.
Justices heard criticisms that websites should not be treated as advertising, that some definitions in the rules are vague, and had a discussion with Bar counsel Barry Richard regarding the rationale for the rewrite of the ad regulations.
Interestingly, not discussed was one of the farthest reaching changes in the amendments — the requirement that most ads, other than websites, be submitted to the Bar for approval prior to publication. Under the current rules, only radio and TV ads must be submitted for prior approval.
Richard noted the Supreme Court had directed the Bar to review the ad rules. The Board of Governors’ Board Review Committee on Professional Ethics, charged with the review, decided on a rewrite rather than a revision because the frequent amendments over the years had left the rules confusing.
“The committee decided it would be best to begin from scratch and review each rule or each concept to determine whether or not it ought to be retained, whether or not the language should be changed to make it clearer and work in compliance with federal jurisprudence, and then restructure the rules to make them simpler,” Richard said.
Following U.S. Supreme Court rulings, he said, the committee focused on misleading or deceptive claims in ads. As an example, he told the court — in response to a question from Justice Barbara Pariente — that the current Bar rules prohibit background music and dramatizations in television ads. The new rules would allow those as long as they are not done “in a manner which is unduly deceptive.”
Likewise, while ad rules now ban testimonials or references to past results, the proposed new rules would permit those as long as they are “objectively verifiable,” Richard said.
Much of the discussion focused on lawyer websites. Richard said the proposed rules define them as advertising, but treat them differently for practical reasons. Preapproval of websites is not needed nor may entire websites be submitted for approval because of the vast size of many sites — hundreds of pages in some cases.
Law firms, however, may submit a specific page or item from a website if they want the Bar’s opinion on its compliance with the advertising rules. If the Bar learns of something on a website that is potentially misleading or unduly manipulative, it will alert the lawyer or law firm responsible for the site and give a reasonable time for the removal of the offending information before a grievance action is filed, Richard said. (Information that is false or misleading violates other Bar conduct rules, and the Bar can begin an investigation immediately.)
Thomas R. Julin, representing eight law firms, said websites should be exempted from the ad rules, or, failing that, the court should adopt the more abbreviated advertising rules recommended by the ABA, which are two pages compared to the Bar’s 20 pages.
“Websites are enormous. They’re like encyclopedias,” Julin said. “When you look at the standards there [in the proposed rules] of potentially misleading and unduly manipulative, both of them are vague standards. . . . We want clear and specific guidelines.”
Julin’s arguments prompted Justice Peggy Quince to ask, “What’s the purpose of them? Websites aren’t there for the purpose of advertising to the public . . .?”
“Certainly a part of it is we want consumers or potential clients to know what we do, so there is a commercial incentive to it. But that’s not what transfers something into commercial speech,” Julin replied, noting the U.S. Supreme Court has been applying stricter standards to regulations on commercial speech.
“If we have very vague rules and they’re applied to websites, which are these complex, massive things, you will have lost all the value of that speech, because you have very conservative law firm administrators trying to comply with these rules,” he said.
“You’re asking that the websites of law firms not be under the same rules as other TV, radio, bus signs,” Justice Pariente observed.
“That is precisely correct. We see those as very distinct things, that websites have special problems and pose commerce clause problems, which are not at all insignificant when dealing with these large law firms that have people practicing in Virginia and New York and California,” Julin said, adding that the Bar advertising rules are stricter than those in other states.
Joseph Lang, representing Carlton Fields and Bilzin Sumberg, two of the eight firms also represented by Julin, agreed with Julin’s comments. He said aspects of the proposed rules could hurt Florida-based law firms.
On reporting past results, he said a Florida firm would have to report each attorney’s past results individually, while an out-of-state firm could aggregate the results of its attorneys.
He said the problems could be addressed by treating websites as information provided at the request of a potential client, which exempts them from advertising regulations but still leaves them covered by other rules that they not be false, misleading, or deceptive.
Lang also said the “objectively verifiable” standard is too vague and could be read that information has to be provable without checking with the law firm, although justices in their questioning seemed to indicate that law firms would be able to vouch for their claims.
“I’m missing the argument that ‘objectively verifiable’ is so vague that you have no idea what that means,” Justice Fred Lewis said.
“The argument is a concern that if the rule says objectively verifiable, we have to read that in the most conservative way,” Lang said.
“That [objectively verifiable] to me is a very reasonable standard . . .,” Lewis replied. “What this comes to is you don’t want regulation of webpages. That’s what this comes to. But that’s what the underlying argument is here: we want to be free to do what we want on our webpages.”
Attorney James Green, representing the American Civil Liberties Union and the Searcy Denney law firm, echoed Lang’s concerns about objectively verifiable, saying he might refer in a website to an old case where records are no longer obtainable.
But he agreed with Justice Lewis that the concerns expressed by the law firms would be addressed if the Bar would accept an affidavit from the lawyer that the information was accurate.
Green also argued that the Bar could have made greater use of short disclaimers, rather than some of the regulations imposed in the new rules.
Representing 411-PAIN, a medical and legal referral service, attorney Tim Chinaris criticized three proposed rules. One would require lawyer referral services to disclose that attorneys pay to belong to the service; the second prohibits the use of authority figures in legal ads; and the third allows the Bar to withdraw approval from a reviewed ad and gives the advertising law firm or referral service 30 days to stop using the ad.
Chinaris said the Bar provided no evidence the disclosure is needed, adding it would be the third disclaimer required by referral services, which would prohibit the use of short broadcast ads because there would only be enough time to run the required multiple disclaimers.
On authority figures, Chinaris said a disclaimer declaring that those appearing were actors would be sufficient. He also said the term “authority figure” is vague, although the Bar mentioned judges and police officers as examples in its filing. He added that the Bar for several years has routinely approved ads using actors portraying police officers.
As for revoking approval, Chinaris said an advertiser could plan an expansive campaign around an approved advertisement, only to have the Bar’s OK revoked with only a 30-day notice.
The court did not indicate when it may rule. But the Bar may have gotten encouragement from a comment Justice Lewis made during his dialog with Lang: “I think Mr. Schwait [Board of Governors member Carl Schwait, who chaired the BRCPE when it drafted the new ad rules] and the Bar and these folks have done a fantastic job in pulling all of this together. They’ve done a better job than I thought they would.”
Although advertised as a rewrite of the advertising rules, the amendments contain many of the provisions of the current rules. That includes a safe harbor provision to cover presumed permissible information as long as that information is true. Ads that contain only safe harbor information do not have to be reviewed by the Bar.
The rules continue to prohibit direct solicitation of clients and to restrict direct mail ads, including prohibiting direct mailings within 30 days of an event that has potentially caused a personal injury or wrongful death. Ads must still include the name of the responsible lawyer or law firm and a location of at least one “bona fide” office.
The new rules required the filing of all non-safe harbor ads, except for websites, “at least 20 days before their first planned use,” and the Bar must finish its review within 15 days of receipt of the complete filing. Lawyers may file segments of websites for the Bar’s review. With some exceptions, the Bar may not pursue a grievance against a lawyer or law firm based on an ad that has received Bar approval. Similarly, the Bar may not pursue a grievance that a feature of a website is potentially misleading or unduly manipulative, unless the law firm or lawyer responsible for the site has been notified and had a chance to remove the information.
Aside from safe harbor ads, public service announcements; listing on a law list or in a bar publication; communications with current or former clients and with other lawyers, information sent at the request of a prospective client; and professional announcement cards sent to other lawyers, relatives, friends, and existing or former clients are also exempt from the filing requirement.