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Advertising Updates

Recent Decisions of The Board of Governors on Advertising

July 2015

The Board of Governors of The Florida Bar considers appeals from opinions of the Standing Committee on Advertising. The Board’s decision on advertising issues at its most recent meeting is as follows:

The Board of Governors reversed the decision of the Standing Committee on Advertising and determined that an advertisement delivered via text message is not a prohibited solicitation under Rule 4-7.18(a), but must comply with the requirements of Rule 4-7.18(b) based on the inquirer’s representations that recipients are never charged for the texts, that the inquirer is in compliance with FCC regulations for commercial text messages, and that the recipient may opt out of receiving texts.

Recent Decisions of The Standing Committee on Advertising
March, May and August 2015

At the committee’s recent meetings it made the following decisions on appeals from staff opinions on lawyer advertising:

Characterizes Skills, Experience, Reputation or Record
Rule 4-7.13(b)(3) prohibits advertisements that contain statements, words or phrases that characterize the lawyer or law firm’s skills, experience, reputation or record unless it is objectively verifiable. The committee determined that the following italicized language is objectively verifiable and therefore is permitted:

Spoken & on-screen text:

The committee also determined that the law firm name “El Ticket Tigre” as expressed throughout the advertisement, including the domain name, telephone mnemonic device, and cartoon logo does not characterize the skills, experience, reputation or record under Rule 4-7.13(b)(3) and does not unduly manipulative under Rule 4-7.15(a) and therefore is permitted. Additionally, the committee determined that the law firm is a permissible trade name under Rule 4-7.21(b). The committee commented that the cartoon tiger used in the logo was unaggressive and nonthreatening, but noted that if the logo were changed to a more aggressive tiger that the committee may not reach the same conclusion.

Lawyer Referrals
Rule 4-7.22(c) defines a lawyer referral services as “any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers” or “any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program.” The committee determined that, which offers premium services to paying members in Florida for exclusive referrals for a one hour period of time before non-paying members can accept referrals, is a lawyer referral service as defined in Rule 4-7.22(c).

Celebrity Figures
An advertisement cannot contain the voice or image of a celebrity. Rule 4-7.15(c). A celebrity is defined as “an individual who is known to the target audience and whose voice or image is recognizable to the intended audience. A person can be a celebrity on a regional or local level, not just a national level.” Rule 4-7.15, Comment. The committee determined that an advertisement’s inclusion of a former major league baseball player, who is the brother of the advertising attorney, is an impermissible use of the voice or image of a celebrity, in violation of Rule 4-7.15(c) because the advertisement included on-screen text identifying the individual by name and as a former major league baseball player. The committee determined that if all information identifying the individual’s name and his status as a former major league baseball player were removed, then the individual may remain in the advertisement because his professional baseball career ended in 1997 and he was not readily recognizable by his on-screen image alone.

Misleading Information in Advertisements
Rule 4-7.13(a) provides that a lawyer cannot make deceptive or inherently misleading communications about the lawyer or services offered unless the statements are factually and legally accurate and no material information has been omitted to avoid misleading consumers. The committee determined that the use of an actor in a pro-football jersey stating “I’m [advertising lawyer’s name] with the on-screen disclaimers, “THIS IS NOT [advertising lawyer’s name] and “Actor. Not Actual Member of the Firm” is not deceptive or inherently misleading under Rule 4-7.13(a) because the tone of the advertisement appeals to the viewer’s sense of humor and not intended to mislead anyone.

Awards and Ratings
Advertisements cannot contain information about awards, honors, ratings or memberships of lawyers “unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria, and that includes among its members or those recognized a reasonable cross-section of the legal community the entity purports to cover.” Rule 4-7.14(a)(3). The committee has determined that the use of awards/recognitions by the organizations “National Trial Lawyers” (Top 100 Trial Lawyer) and “The National Advocacy for DUI Defense” (Superior DUI Attorney) are permissible because they are given by bona fide organizations that use objective selection criteria as required by Rule 4-7.13(a)(3).

Economic Incentives
An advertisement cannot offer an economic incentive for consumers to hire the lawyer or view the advertisement. Rule 4-7.15(d). The committee has determined that a membership to a savings program (Brandply) could be offered only to a lawyer or law firm’s clients who have already established a relationship with the firm. The savings plan is a discount plan in which lawyers agree with the company organization the savings plan in which the lawyer would pay a one-time set up fee plus a fee per participant to offer coupons and discounts for services, products, and companies that the firm clients would access through a website that displays the law firm’s name, contact information, and a link to the law firm’s website together with the coupons and discounts offered to participants. The committee members commented that the program could not be offered to former clients or to prospective clients, or on the firm’s website as an incentive to visit or hire the firm, because to do so would be a prohibited economic incentive to employ the lawyer or law firm’s services, in violation of Rule 4-7.15(d). The committee commented that it is not authorized to interpret rules other than the lawyer advertising rules, but that a lawyer or law firm’s participation in the savings plan raised ethics concerns such as prohibited financial assistance if offered to clients with pending or contemplated litigation and potential conflicts of interest depending on the services, products, or companies offered through the savings plan, and that the lawyer or law firm is lending its imprimatur to the services, products, and companies offered by the savings plan.

The information provided in this article is for educational purposes. The content of any advertisement noted in this article may constitute the intellectual property of the advertising lawyer or another person and use of any of the content of the advertisements may require permission of the copyright holder. If you have any questions regarding lawyer advertising, call the Ethics Hotline at 1-800-235-8619 and we will be happy to assist you. 

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