The move comes after a federal judge issues an adverse ruling
By Gary Blankenship
Amounts that clients have won in lawsuits are again permissible for lawyers to use in television, radio, and billboard advertising.
The Bar Board of Governors, following a federal judge’s ruling and results from a Bar-sponsored survey, have dropped advertising guidelines that said it was inherently misleading to use past results in those ads. These ads, however, must still be accurate and make no material omissions.
Bar President Greg Coleman, after the board’s vote to withdraw the guidelines at its December 12 meeting in Amelia Island, also said it’s time to review other parts of the Bar’s advertising program, including the requirement that most ads be submitted to the Bar for review before they are published or aired.
But Coleman emphasized that none of the actions change the latest version of the advertising rules that were adopted by the Supreme Court in January 2013. Those rules, for the first time, allowed lawyers to refer to past results in their advertising, as long as those results were “objectively verifiable.”
In December 2013, the board adopted guidelines that said it would not provide safe harbor letters for ads referring to past results in billboard, indoor display, television, and radio ads because those media did not allow for explaining the context of lawsuit awards.
Coleman noted the guidelines were adopted after the Bar received a number of complaints about ads featuring past results, particularly billboards that often quoted clients as saying their lawyers won them a particular amount of money.
“The position of this board [in adopting the guidelines] was based on a number of complaints from our constituents who felt these billboards advertising past results . . . were inherently deceptive and misleading to the public,” Coleman said.
But the guidelines, which were modified early in 2014, resulted in two lawsuits, and the Bar also commissioned a survey from Frank N. Magid & Associates to determine whether the public was misled by advertising of monetary past results in electronic media and in indoor and outdoor display ads.
“We received a partial summary judgment that was issued against us by [U.S. Southern District of Florida] Judge [Beth] Bloom,” Coleman said. “Effectively, Judge Bloom said . . . as long as these past results were objectively verifiable and as long as they had the documentation, then that was an acceptable advertisement. It was not inherently misleading or deceptive.”
The only way to challenge that finding, he said, was to provide evidence the ads were misleading the public. The survey ordered by the Bar showed the opposite.
“We have the Magid study and the public does not view these as misleading and deceptive,” Coleman said. “Basically, a policy decision has been made. The judge has ruled and we honor Judge Bloom’s ruling. From a policy perspective moving forward, unless they are not objectively verifiable, it will be permissible under our existing rules and guidelines [to use past results in lawyer ads].
“Additionally, we have voted to withdraw the [Bar] guidelines [adopted in December 2013] as of now, which keeps in place our rules on advertising and the Supreme Court guidelines on those rules. . . . We are not changing the rules or the Supreme Court commentary.”
Coleman spoke after the board had an extensive presentation in executive session from the Bar’s attorney, Barry Richard, on the advertising litigation.
Richard said that the judge had left the door open to lifting the injunction if the Bar could provide evidence, but the Magid study failed to do that. Instead, it showed that far from being misled about ads touting large awards, the public was leery of such claims.
“[The Magid study] found the public was not misled by this advertising; they found the ads they like the least were the ones with the numbers in them,” Richard said. “As a result of that, the Board of Governors voted to repeal all of the guidelines and to interpret and apply the rules and allow the inclusion of past results including amounts in all media, including billboards, TV, and radio.”
Judge Bloom’s ruling came four days before the board meeting in a case brought by Robert Rubenstein and Rubenstein Law, P.A. Rubenstein had been denied approval of some proposed ads, and was the subject of a grievance case brought in June after complaints were made to the Bar.
Judge Bloom found the guidelines failed to meet the strictures of Central Hudson v. Pub. Serv. Comm. Of N.Y., 447 U.S. 557 (1980), that speech restrictions must serve a substantial government interest, directly advance the interest served, and be no more restrictive than necessary. She also said the Bar failed to present any evidence that the guidelines’ ban of past results in indoor and outdoor displays, television, and radio ads caused public harm and that the Bar’s own research [prior to the Magid study] showed the public wanted information about past results to help choose attorneys.
“There are no factual issues in dispute regarding the Bar’s blanket prohibition on the use of past results in attorney advertising on indoor and outdoor display, television, and radio media,” Bloom wrote. “The Bar has failed to demonstrate that the rules regarding the use of past results in attorney advertising as interpreted by the guidelines advance a substantial government interest, or that those restrictions are not more extensive than necessary to serve that interest.”
She found the guidelines unconstitutional and prohibited their use in enforcing Bar advertising rules 4-7.13 and 4-7.14 on using past results.
Besides the action on the guidelines, Coleman said he has asked Board Review Committee on Professional Ethics Chair Carl Schwait to review the current advertising system with an emphasis on two points. One is the appeal system for ads reviewed by the Bar. The other is the rule requiring Bar review of billboard, radio, television, and direct mail ads, as well as ads that contain more than limited safe harbor information defined in the advertising rules before those ads are published or broadcast.
“There has been a suggestion that maybe we consider going away from mandatory filing and making the filing voluntary,” Coleman said.
He said if the Bar went from mandatory to voluntary filing, the Bar would consider making the advisory letters nonbinding. Currently, if an ad is reviewed by Bar staff, the standing committee, or the board and found to comply with Bar rules, notice of compliance is sent that is binding in the disciplinary process, as long as the underlying ad is not changed and there are no misrepresentations made that are not apparent from the face of the ad.
In the voluntary system, instead of a safe harbor letter, lawyers would get a staff opinion letter that could be used in a grievance action to show a lawyer’s good intent but would not be binding on any grievance action. Coleman noted that’s the same system the Bar uses for ethics inquiries.
“If we ultimately do away with the safe harbor letters, I think that will avoid a lot of this unnecessary litigation,” he said.
Coleman also said the board should consider streamlining the appeal process for ads. Currently, if Bar staff rejects an ad, a lawyer can appeal to the Standing Committee on Advertising. Beyond that step, the lawyer can appeal to the BRCPE and its actions are reviewed by the board.
Changing the mandatory review of ads and the appellate process will require rule amendments, Coleman said, and those ultimately will be submitted to the Florida Supreme Court.
Schwait told the board there are no changes to the underlying advertising rules as approved by the court in January 2013, or any of the court’s commentary and guidelines on the rules.
He said the Bar has been navigating between the Florida Supreme Court, which tends to emphasize consumer protection, and the federal courts, which lean toward freedom of speech and freedom of commerce.
“We could mesh the two, but now at the end, we have found freedom of speech is trumping,” Schwait said. “It’s not that we failed; we had the realization we have gone as far as we can with some of these issues and now it’s time to change the process and procedures to ensure that we’re fair to the lawyers of Florida, to the public, and to our staff.”
Board members said withdrawing the guidelines or changes to the advertising review process do not mean the Bar should be lax on lawyer advertising.
Board member Skip Campbell pointed out that the federal court did uphold the objectively verifiable standard.
“I think we should put in a procedure that if someone is going to put a sign out with someone laughing that says someone [a lawyer] got me two million bucks, they should provide that objectively verifiable information,” he said. “I think the court gives us the right to do that.”
Board member Bill Davis said if the Bar goes to voluntary reviews, it should beef up enforcement of ad rules through the disciplinary system, including doing proactive investigation of ads instead of waiting for complaints.