Advertising Update
Recent Decisions of The Board of Governors on Advertising
January and May 2016
The Board of Governors of The Florida Bar considers appeals from opinions of the Standing Committee on Advertising. The Board’s decisions on advertising issues at its most recent meetings are as follows:
Testimonials
Rule 4-7.13(b)(8) prohibits testimonials unless they meet the following requirements:
• the person making the testimonial is qualified to evaluate the lawyer
• the testimonial is the actual experience of the person making the testimonial
• the information provided by the testimonial is representative of what clients of the lawyer or law firm generally experience
• the lawyer has not written, drafted or edited the testimonial
• the person making the testimonial has received nothing of value in exchange for the testimonial
The committee found that two television advertisements are misleading, in violation of Rule 4-7.13(b)(8) because they contain testimonials that the filer indicates were actual client experiences, but which were portrayed by paid actors. Rule 4-7.13(b)(8) requires that testimonials must be the personal experience of the person giving the testimonial, must be given by someone qualified to evaluate the lawyer, and must not have been paid.
Chat Rooms
Advertising Advisory Opinion A-00-1 was revised by the Board of Governors to conclude that direct communications via live, real-time electronic messages in a chat room do not constitute prohibited solicitation if they do not involve face to face communications (such as video conferencing) and comply with the requirements for written communications in Rule 4-7.18(b).
Recent Decisions of The Standing Committee on Advertising
November 2015, January, March, June and August 2016
At the committee’s recent meetings, it made the following decisions on appeals from staff opinions on lawyer advertising:
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 determined that “Chambers USA – Litigation: Appellate” is an award from a bona fide organization that uses objective selection criteria as required by Rule 4-7.14(a)(3).
The committee also determined that the requirements for awards and ratings does not apply to the following awards, because the awards are not based on legal abilities or related to legal services:
“Veterans of Influence” award, Orlando Business Journal
“Women Who Mean Business” award, Tallahassee Woman Magazine
“40 Under 40” award, Jacksonville Business Journal
Testimonials
Rule 4-7.13(b)(8) prohibits testimonials unless they meet the following requirements:
the person making the testimonial is qualified to evaluate the lawyer
• the testimonial is the actual experience of the person making the testimonial
• the information provided by the testimonial is representative of what clients of the lawyer or law firm generally experience
• the lawyer has not written, drafted or edited the testimonial
• the person making the testimonial has received nothing of value in exchange for the testimonial
The committee determined that the following italicized language does not constitute a prohibited testimonial because it reflects the client’s subjective experience with the lawyer’s firm which the client is qualified to evaluate:
[Lawyer’s name] and his associates did a fantastic job.
Prediction of Results
Rule 4-7.13(b)(1) prohibits any statement in lawyer advertising that a consumer can reasonably interpret as a prediction or guaranty of success or specific results the lawyer can achieve. The committee determined that the following language is permissible under Rule 4-7.13(b)(1) because the advertisement, considered in its entirety, asks questions, states that the firm will give a free case evaluation and contains an on-screen disclaimer and therefore does not predict a specific result or guarantee success:
In a wreck? Need a check?
In a crash? Need some cash?
Call us today for a free case evaluation.
[Disclaimer running across the bottom of the screen: This ad is not a prediction of specific results or a guarantee of success.]
Additionally, the committee determined that the telephone number, 475-CASH, is permissible, finding that a consumer cannot reasonably interpret the telephone number as a prediction or guarantee of success or specific results the lawyer can achieve.
The committee determined that the image of a wizard, the use of the name “Ticket Wizard,” and the tag line “Results So Good, You’ll Think It’s Magic!” for a law firm that handles traffic tickets predicts or guarantees success or specific results and prohibited by Rule 4-7.13(b)(1).
The committee also determined that the use of the name “Ticket Wizard” and the tag line, “Results So Good, You’ll Think It’s Magic!” characterizes the lawyer or law firm’s skills, reputation or record in violation of Rule 4-7.13(b)(3), because the characterization is not objectively verifiable.
Misleading Information in Advertisement s
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 found that the following language in an advertisement for a lawyer referral service is not deceptive or inherently misleading under Rule 4-7.13(a) and does not state or imply that the referral service does anything other than refer consumers to lawyers:
Car accidents happen…. And just because your snapchat disappears doesn’t mean your problems disappear just as quickly…. But they could disappear after calling [name of lawyer referral service].
Firm Name
Rule 4-7.12(a)(1) requires all advertisements to contain the name of either the advertising lawyer or law firm. The committee determined that an abbreviated version of the firm’s name on an internet banner ad did not comply with this rule because the it was not the firm’s full name. The firm uses its full name on its website, letterhead and business cards, which is Smith, Jones, Brown, Green & Red, P.A. On the banner ad, the firm used an abbreviated version of the full name, Smith Jones.
Comparison
A lawyer’s services can be compared to another lawyer’s services only if the comparison is objectively verifiable. Rule 4-7.13(b)(3). The committee determined that the following italicized language is not a prohibited comparison of services because it is a comparison of how the office answers telephone calls and does not compare the lawyer or law firm’s skills, experience, reputation or record:
Are you tired of being routed through computer systems and call centers?
We’d like you to consider us.
Our attorneys will answer your questions for free – it’s that simple, so call us.
I think you’ll like our personal service.
Experience the difference.
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.
