Firms weigh in on attorney websites
Firms weigh in on attorney websites
Associate Editor
E ight major law firms protested the recently proposed Supreme Court rules for web advertising in a 66-page comment to the court submitted just before the August 16 deadline.The firms — including Foley & Lardner, White & Case, Holland & Knight, and Carlton Fields — balked at the proposed rules, which would restrict online testimonials, case summaries, and some audio and visual content.
Rule 4-7.6 was submitted by the Bar to the Florida Supreme Court in June at the direction of the court after the court issued an order stating that all of the substantive lawyer advertising rules will be applicable to lawyer websites. The court’s order means that, for example, websites will not be able to freely use past results, testimonials, and statements that characterize the quality of legal services, among other regulations. The additional amendments filed in June would permit testimonials, past results, and other information to be posted in separate sections on firm websites. Online viewers, the rule states, would need to confirm their request for the information by accepting a disclaimer before entering that section of the site.
These guidelines could involve entire overhauls of some firm websites and re-programming of others, updates that law firms said could cost millions of dollars for larger establishments.
Although cost is a concern, the comments presented by the eight firms suggest that a decrease in business might be a greater consequence of the proposed rules.
Comments were also submitted by other Florida attorneys, the American Civil Liberties Union, and a former ethics director of The Florida Bar. At least one lawyer said the proposed rules were too lax. Among the comments:
• “Florida residents surfing the web and looking for legal information from Florida firms will gravitate to the more attractive and accessible websites offered by the non-Florida firms, bypassing the very firms that Florida regulates.” — Bilzin Sumberg Baena Price & Axelrod; Carlton Fields; Foley & Lardner; Jorden Burt; Holland & Knight; Hunton & Williams; Weil Gotshal & Manges; and White & Case.
• “The cost to members of the Bar to comply with the current rule will probably run into the tens of millions of dollars. While I suppose this could be considered an economic stimulus package for IT departments and web developers, members of the Bar and, ultimately, clients, will end up paying for this stimulus.” — Daniel Woodring, Woodring Law Firm, Tallahassee.
• “The level of detail contained in the proposed rule is especially inappropriate in light of the subject matter of the rule, which is the advertising of legal services through the use of technology. Technology will continue to change and develop, as will its uses in the legal profession. If the proposed rule is adopted, it is almost certain to become outdated very quickly.” — Timothy Chinaris, former ethics counsel of The Florida Bar, Montgomery, AL.
• “An advertisement that says to the consumer ‘Memorial Day Sale — One Day Only — $199 for Each Sony Television’ is classic commercial speech that does nothing more than propose the sale of a product. Attorney websites only rarely contain information in this form. None of the websites maintained by the commenters contain such commercial speech. These sites contain articles, white papers, and analysis of legal issues and decisions.” — Bilzin Sumberg Baena Price & Axelrod; Carlton Fields; Foley & Lardner; Jorden Burt; Holland & Knight; Hunton & Williams; Weil Gotshal & Manges; and White & Case.
• “With these rules, the court and Bar cannot show that the prohibitions and restrictions on speech are false or misleading or that the court and Bar have any other legitimate interest in regulating these forms of speech. Indeed, the rules appear to be intended less to protect the public from harm than to suppress certain forms of speech that the court and Bar officials find to be distasteful.” — Searcy Denney Scarola Barnhart & Shipley, West Palm Beach/ACLU Foundation of Florida.
• “The Bar is adamant that lawyers must have the right to engage in what many feel inherently has ‘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.’ Their method: (1) Redefine something that is prohibited by calling it something it is not; (2) warn the public that it may be dangerous to look at or listen to some information, and; (3) warn people that The Florida Bar washes its hands regarding the information to be seen or listened to.” — Bill Wagner, Wagner Vaughan & Mclaughlin, Tampa.
• “In this era, a website that attempted to limit the ‘look and feel’ of its artwork to ‘an illustration of the scales of justice,’ ‘the American eagle,’ an ‘unadorned set of law books,’ or other elements permitted under Rule 4-7.2(b)(1)(L) risks ridicule, not professional respect.. . . Consumers seeing primitive artwork on a website may wonder whether the professional services being offered are equally primitive.” — Bilzin Sumberg Baena Price & Axelrod; Carlton Fields; Foley & Lardner; Jorden Burt; Holland & Knight; Hunton & Williams; Weil Gotshal & Manges; and White & Case.
Website rules have been a difficult issue for the Bar’s Board of Governors. The board, after an extensive study of advertising rules in 2004-05, took an extra year to review the intricacies surrounding law firm websites. The Bar ultimately recommended to the court that the home page be subject to all the substantive advertising rules, and that the remainder of lawyer websites be subject to the substantive advertising rules with three exceptions: prohibitions against statements characterizing the quality of legal services, past results, and testimonials. In the latter two instances, the Bar recommended disclaimers. Websites would remain exempt from the filing requirement.
The court rejected that approach. In a ruling issued last November, the court said that websites are subject to the general advertising rules contained in Bar Rule 4-7.2. That rule bans lawyers from using testimonials, referring to past results, or characterizing the quality of their legal services — all commonly done on law firm websites.
The Board of Governors, noting the short time between the issuance of the opinion and the January 1, 2010, effective date, first asked the court to delay the effective date until July 1, 2010, and the court agreed.
The Bar then asked the Standing Committee on Advertising to
provide guidance for Bar members on complying with the rules.
The Supreme Court said it liked those suggestions but asked the Bar to include them in the advertising rules rather than being just guidelines.
The court also has said that the new website rule will be effective 90 days after the court acts.
A listing of all the comments can be found here: http://www.floridasupremecourt.org/clerk/comments/2010/index.shtml .
For a direct link to the comments from the eight large firms, go here: http://www.floridasupremecourt.org/clerk/comments/2010/10-1014_081610_Comments%20%288LawFirms%29.pdf .