No testimonials. No characterization of services. No past results.
By Mark D. Killian
The Florida Supreme Court has taken a hard line toward lawyers’ Web sites, ruling they must comply with all Bar advertising regulations, except the requirement that they be submitted to the Bar for review.
That means lawyer Web sites may not:
• Make statements that characterize the quality of legal services being offered;
• Provide information regarding past results;
• Include testimonials.
The court, acting November 19 in case no. SC08-1181, said the purpose of Rule 4-7.6 (Computer Assisted Communications) is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers’ abilities to provide information about themselves to the public.
“In light of this purpose, the court intends that Web sites be subject to all of the substantive advertising regulations applicable to other advertising media (except the filing requirement),” the court said.
The court also ruled that direct e-mail solicitations aresubject to the same lawyer advertising rules that regulate traditional direct mail advertisements.
The changes are effective January 1, 2010.
“The thing that lawyers need to take away from the opinion is even though Web sites are exempt from filing, they are not exempt from application of the general rules — so lawyers are going to have to be careful about the information they post on their Web sites,” said Bar Ethics Counsel Elizabeth Tarbert.
“All the general rules apply.”
Tarbert said some of the other areas of the advertising rules that commonly trip up lawyers include making claims to have specialization or expertise in an area, unless the lawyer is board certified in that area, and featuring visual or verbal portrayals that are false, misleading, or deceptive.
“There is a whole host of other regulations, too,” she said.
Tarbert also said while lawyer Web sites are not subject to the filing requirements, that does not mean the Bar won’t prosecute lawyers if it comes to the Bar’s attention that their Web sites do not comply with the advertising rules.
This past February, the court rejected the Bar’s proposed lawyer Web site advertising rules, questioning whether they would provide sufficient protection for the public.
The Bar’s proposed amendments came about after a long period of study. The Advertising Task Force 2004, charged with reviewing the ad rules, originally recommended that Web sites be treated as information provided at the request of a prospective client. That would have exempted Web sites from Bar advertising rules, although other Bar rules, such as requiring that information provided not be false, misleading, or deceptive, would still apply.
But the Bar Board of Governors rejected that recommendation, with governors saying they viewed Web sites as similar to Yellow Pages ads and hence should have more than minimal regulation. That led to the creation of the Special Committee on Web site Advertising.
The special committee grappled with the unique problems of lawyer Web sites. Those include that the sites can be changed frequently; they are often extensive, running to hundreds of pages if printed out; and lawyers typically use testimonials, refer to past results, and/or characterize the quality of their services — all prohibited in other types of advertising.
The final result was a recommendation — approved by the board — that Web sites not be required to be submitted for Bar review like other types of ads that provide more than basic information. The proposal also would allow lawyers and law firms to use testimonials, mention past results, and characterize the quality of their services if they include a disclaimer. That would include statements that not all clients have provided testimonials, and that the facts for the prospective client’s case may be different from past results given on the Web site from those giving testimonials.
The court, however, noted the Bar’s Citizens Forum — composed of citizens who could be consumers of legal services — looked at the Bar’s proposed rules and recommended lawyer Web sites be subject to the same substantive rules as all other forms of lawyer advertisements, including submission of the filing with the Bar for review. The Bar’s Special Committee on Web site Advertising made the same recommendation — excluding only the requirement of filing with the Bar for review because of the insurmountable workload burden that would entail.
In March, the Bar filed a motion for clarification and rehearing saying that by not adopting any of the Bar’s proposed changes to Rule 4-7.6, the court left lawyer Web sites as information “upon request” not subject to any of the lawyer advertising rules, and regulation of e-mail solicitations would continue to deviate significantly from the rules governing mail sent through regular U.S. mail.
The court granted that motion.
In its revised November 19 opinion, the court said in contrast to the court’s intentions, the Bar’s proposed amendments would have permitted lawyers to make statements that characterize the quality of legal services being offered, provide information regarding past results, and include testimonials on their Web sites. At oral argument, the court expressed concern regarding those proposed exceptions, noting they are all prohibited by the existing advertising rules.
“Thus, when the court previously declined to adopt the proposed amendments, the opinions stated that these established and substantive advertising rules, which protect the public, should apply to computer-accessed advertisements,” the court said, adding that, for example, laudatory-type statements, such as testimonials, are “extremely troubling because they have the most potential for abuse, as well as the most potential for further denigrating the justice system and the legal profession in the minds of the public.”
The court also said it would be “incongruous to propose a loosening of the advertising rules and the allowance of more self-laudatory statements (i.e., past results and testimonials), in a forum that the Bar admits it cannot adequately monitor or control.”
In light of the court’s opinion, the Bar proposed in the motion for rehearing that “[i]f this court intends that Web sites be subject to all of the substantive advertising regulations applicable to other advertising media (excepting the filing requirement), this court should amend rule 4-7.6(b) by striking the language referring to information ‘upon request’ and adding language that Web sites are subject to the requirements set forth in rule 4-7.2.”
And that is what the court did.
The court also clarified that e-mail communications are subject to rules that regulate advertisements by traditional mail.
“Direct e-mail will be subject to basically the same requirements as direct mail, which will reinstate the requirement of a statement of qualifications, reinstate the requirement that a disclosure appear if a lawyer will handle the matter other than the one whose name appears in the advertisement,” Tarbert said. “Direct e-mail will be required to have the subject line begin with the statement ‘legal advertisement.’”
Chief Justice Peggy Quince and Justices Barbara Pariente, Fred Lewis, Charles Canady, Ricky Polston, and Jorge Labarga concurred. Justice James Perry did not participate.