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February 15, 2007
Board takes new tack on lawyer Web sites

Proposal includes some lawyer ad rules exemptions with disclaimers

    By Gary Blankenship
    Senior Editor
    With an admonition from President Hank Coxe that their actions will affect every Florida Bar member, the Board of Governors has tentatively approved an advertising rule amendment regulating attorney Web sites.

    The board is soliciting input from Bar members and will give final consideration to the rule at its March 30 meeting in Tampa.

    At its January 26 meeting in Tallahassee, the board approved the recommendation of a group of board members from the 11th Circuit, adopted as a friendly amendment from the chair of the Special Committee on Website Advertising. The board abandoned an earlier proposal that lawyers use technology to block unlimited access to interior pages of a Web site. Instead, it proposed that those interior pages be exempted from some advertising regulations if disclaimers are made.

    “I do want to let the members see this first [before final adoption]. It affects everyone,” said Coxe, adding that this proposal addresses the concerns of small firms that any Bar ad rule on Web sites not be prohibitively expensive, which would prevent them from competing with large firms. Any rule approved by the board will be submitted to the Supreme Court, which will have the last say.

    The rule requires that the home page, or opening page of an attorney Web site, comply with all Bar advertising rules, except the requirement it be submitted for review.

    “We are trying to draft something that is fair to lawyers yet protects the integrity of the profession,” said board member Chobee Ebbets, chair of the special committee. “It is a unique problem that most bars have not begun to grapple with.”

    The final proposal was suggested by members of the board’s Miami-Dade County delegation, Ebbets said, and recognized that the Internet is a unique form of communication with technological and other problems that must be addressed in any regulation of attorney Web sites.

    Instead of a technological solution of trying to limit access to parts of a law firm Web site, Ebbets said the proposal would allow exceptions for the three most common types of information firms include on their sites, and which are banned from other forms of unsolicited lawyer advertising. Those are: references to results of past cases, identifying clients and using testimonials from those clients (with permission of those clients), and statements characterizing the quality of the law firm’s services.

    (Such statements, as long as they are not dishonest or misleading, are allowed in information provided at the request of a prospective client, but not in unsolicited advertising contacts, such as Yellow Pages, TV ads, and direct mail letters.)

    Lawyers taking advantage of the exceptions would have to include disclaimers.

    “It intelligently addressed the issues the board was trying to deal with in this debate,” Ebbets said of the proposal.

    The special committee at the board’s December meeting had proposed a technological solution. The home page would have to follow Bar ad rules, but interior pages not accessible from a general Internet search would be exempt from ad rules, although they would have to follow other Bar rules that information not be false, misleading, or deceptive. Law firms could comply by requiring viewers register to get to the interior pages or e-mail the firm to get a password, by requiring them to “click” a button to access those pages, or by redirecting the viewer to the home page. The site would have to be set up so a search engine would not allow direct access to the interior pages that did not comply with Bar advertising regulations.

    Ebbets said that approach is problematic for lawyers because of the constant evolvement and sophistication of search engines. There is no way, he said, to guarantee a new search engine technology would not take potential clients directly to interior pages, particularly if law firms opted for the cheapest and most viewer-friendly option of only having a button to click to reach those inside pages.

    “We are never going to be able to overcome the constantly changing technology to protect those back pages from a search engine,” said board and special committee member Steve Chaykin. “Search engines will always come up with a technology to break that firewall. Plus, it would be expensive to try.”

    The proposal recognizes that reality, along with allowing the type of information most lawyers want to put on the Web sites, he said.

    “Lawyers want three types of information on back pages: They want to talk about past results; they want to talk about who their clients are, perhaps with some testimonials; and they want to characterize [the quality of] their services,” Chaykin said.

    Board members said they have had extensive feedback from Bar members on the topic, including worries that the regulations will increase the difficulty and expense smaller firms have in setting up and maintaining Web sites.

    Board member Harold Melville said he thought the proposed rule was still too restrictive. He agreed that home pages should comply with Bar ad rules, but added that anyone who types a sophisticated search engine query that takes the user to an interior Web page — or clicks a button on the homepage to get to the same pages — has basically made a request for information. Such an inquiry should be covered by general Bar rules, he argued, but not ad rules.

    “People search the Web for specific things. A consumer who searches the Web for an attorney in Ocala who does medical malpractice . . . I believe by definition that is information on request,” Melville said.

    President-elect Frank Angones took a different view. He argued that attorneys should not be able to use testimonials, refer to past results, or characterize the quality of their legal services on interior pages, because similar things cannot be done on TV and other types of ads.

    Ebbets said other advertising restrictions would still apply to Web sites. Those restrictions include that lawyers may not say they practice in areas where they do not; they cannot use misleading, deceptive, or manipulative visual or verbal portrayals or illustrations; lawyers may not promise results; and other restrictions in Bar Rule 4-7.2.

    “I recognize that the Dade option is a compromise between the two extremes, but I think it’s a realistic compromise that the lawyers of Florida can live with,” said board member Nancy Gregoire.

    The board voted 33-5 to accept the proposed rule. Governors then voted 30-6 to accept proposed disclaimer language to include on Web pages where lawyers use testimonials or refer to past results.

    The disclaimer on referring to past results says, “Not all results are provided, the results are not necessarily representative of results obtained by the lawyer, and a prospective client’s individual facts and circumstances may differ from the matter in which the results are provided.” Similar disclaimers would be used for testimonials.

    Ebbets said nearly four years of study have gone into the Web site proposed rule. He noted the Advertising Task Force 2004 began looking at revising advertising rules in 2003. It eventually recommended to the board that, among other changes, Web sites be treated as communications made at the request of a prospective client. That would exempt them from advertising rules, although general Bar rules about being false, misleading, or deceptive would still apply.

    The board rejected that suggestion, saying it wanted Web sites regulated under Bar advertising rules, and created the special committee to study the matter. While the special committee was working, several Supreme Court justices, in oral arguments on other advertising rule amendments, indicated they hope to see strong rules regulating attorney Web sites.

    The special committee eventually in December recommended changes that would apply the general advertising rules in Rule 4-7.2 to Web sites. The board also reviewed draft commentary addressing limited access to interior pages of the Web site which are not in compliance with general advertising regulations. But many board members questioned whether that was technically feasible and whether it might impose exorbitant costs on Bar members.

    That in turn led to the compromise rule amendment approved by the board last month.

[Revised: 11-01-2018]