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Lawyer advertising rules challenged in federal court

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Lawyer advertising rules challenged in federal court

The suit contends the ‘objectively verifiable’ standard is vague and violates First Amendment rights

Senior Editor

Saying it was frustratingly unable to make its website comply, personal injury law firm Searcy Denney Scarola Barnhart and Shipley sued The Florida Bar in federal court, seeking a declaration that its advertising rules violate the First Amendment and are unconstitutionally vague.

The 29-lawyer firm, with offices in Tallahassee and West Palm Beach, also asked for an injunction preventing the Bar from enforcing the rules. The lawsuit was filed December 10 in the Northern District of Florida in Tallahassee.

“Florida’s rules are so broad that they would have subjected Abraham Lincoln to discipline for stating, in an 1852 newspaper advertisement, that his firm handled business with ‘promptness and fidelity’ — two words that are no more ‘objectively verifiable’ than those the Bar concludes violate its ethics rules here,” wrote lawyers Richard Burton Bush, of Tallahassee, and Gregory Beck, of Washington, D.C., representing Searcy Denney.

Barry Richard Barry Richard, the Bar’s outside counsel, said: “I believe that the ‘objectively verifiable’ standard is a reasonable one, which is what the Florida Supreme Court found. And I think it is an understandable one. With respect to the details of their lawsuit, we’re studying it. We appreciate hearing from firms, like Searcy Denney, a law firm we respect. We would prefer to hear from them other than a lawsuit, but we are weighing and studying the issues they raise in their complaint.”

Those two words — “objectively verifiable” — are at the heart of the January 31, 2013, Florida Supreme Court opinion in SC11-1327 : In Re: Amendments to the Rules Regulating The Florida Bar — Subchapter 4-7, Lawyer Advertising Rules, when the court blessed a complete overhaul of lawyer advertising rules after an extensive study by The Florida Bar at the court’s request.

In that 4-3 opinion, the court noted that some commenters to the proposed rules asserted that the requirement is unclear.

“We disagree. If the attorney can show, by objective facts, that the statement is true, then he has presented an objectively verifiable statement in the advertisement. On the other hand, making a subjective statement, such as ‘the best trial lawyer in Florida,’ is a misleading statement that fails to meet the requirement because it is neither objective nor verifiable. The advertising statement must be supported by verifiable facts,” Chief Justice Ricky Polston, and Justices Fred Lewis, Jorge Labarga, and James Perry agreed.

The Searcy Denney lawsuit chronicles all of The Florida Bar’s machinations with lawyer advertising rules through the years, beginning in 1990, noting that the Bar interpreted a former rule against “background sounds” in broadcast advertisements to prohibit the “sounds of kids playing with a bouncing ball” and the “sound of a seagull.”

In 2013, the rules culminated in the overhaul that subjected lawyer websites to all of the rules’ restrictions for the first time.

“Following adoption of the amendments, Searcy Denney began reviewing the thousands of pages on its websites in an attempt to bring them into compliance,” the lawsuit says.

“But the firm found itself unable to determine which statements would. .. violate the undefined ‘objectively verifiable’ requirement. The firm also realized that strict compliance with the rules’ broad language would require it to take down substantial portions of its websites at a cost of tens of thousands of dollars, as well as to remove political opinions from its blog and to cancel its social media profiles on sites like LinkedIn.com.”

The lawsuit describes how, before the new rules went into effect, Searcy Denney wrote to the Bar requesting an advisory opinion about the effect of the rules on its websites.

“Because the amended rules prohibit submission of an ‘entire website for review,’ the firm chose a sample of 13 individual web pages from the thousands it maintains, including content from the firm’s home page; a page from a separate, topic-driven website; the firm’s profile page from the social media site LinkedIn.com; and articles from the firm’s blog. Its letter requested clarification of the rules’ meaning and ‘guidelines to follow while evaluating the rest of the content on our websites, as well as future material that is continuously being added to the sites.’

“After much thought and internal discussion,” Searcy Denney wrote to Elizabeth Tarbert, the Bar’s chief ethics counsel, “we simply can’t figure out whether these sections violate the amended rules.. . . ”

“The Bar then concluded that the firm’s submitted web pages, blog, and LinkedIn pages each violate some aspect of the amended rules. The Bar singled out statements of opinion as violating the ‘objectively verifiable’ requirement — including statements that the days ‘when we could trust big corporations. .. are over,’ that ‘[g]overnment regulation of Corporate America’s disregard of consumer safety has been lackadaisical at best,’ and that ‘when it comes to “tort reform” there is a single winner: the insurance industry.’

“The Bar similarly concluded that truthful but subjective descriptions of the firm’s services and record also violate the same rule — such as the firm’s truthful claim to have ‘32 years of experience handling mass tort cases, resulting in justice for clients in a wide variety of circumstances’ and to be ‘one of the few law firms in the country to successfully represent innocent victims of dangerous herbal supplements’ — because words like ‘justice’ and ‘successfully’ are inherently subjective.”

Tarbert, named as a defendant in the lawsuit, declined to comment on pending litigation. Bar General Counsel Paul Hill said December 27 that the defendants had not yet been served. Also named as defendants are Bar Executive Director John F. Harkness, Jr.,; James N. Watson, Jr., chief disciplinary counsel of the Legal Division’s Tallahassee branch; and Adria E. Quintela, chief disciplinary counsel of the Legal Division’s Ft. Lauderdale branch.

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