New guidelines may impact some current lawyer advertising
New guidelines may impact some current lawyer advertising
Senior Editor
Around 350 ads from about 70 different law firms approved by The Florida Bar in recent months may no longer be allowed under new advertising guidelines recently approved by the Bar Board of Governors.
The Bar is sending 90 to 100 letters to lawyers and law firms that submitted ads to the Bar under new advertising rules that became effective May 1. The firms were told either that the ads complied with the new rules or would comply if certain changes were made. In the latter case, the ads may have been modified to comply and then used without further submission to the Bar, so these letters are being sent as a precaution.
The Standing Committee on Advertising was told about the letters during its January 23 meeting as it considered a request from Bar staff for guidance on how to apply the guidelines to some TV ads.
The guidelines were approved by the Bar Board of Governors in December and restrict references to past results in billboards, other such display ads, and TV and radio ads. The board’s concern is that while new rules allow ads to contain past results if they are objectively verifiable and there are proper disclaimers, it may be impossible to include the disclaimers and adequately explain the context of the award in quick-hitting ads like billboards or TV and radio spots.
Because of those concerns, the guidelines provided that “generally” past results may not be used in such ads.
The specific ads considered by the advertising committee came from the Orlando firm of Dan Newlin & Partners, which was represented by Tallahassee attorney Mike Glazer. He contended its TV ads met the tougher standards because all awards mentioned were net awards and hence accurately reflected the amount actually received by clients — a concern of the board’s. Glazer also said the spots contained a prominent text disclaimer: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.”
“We don’t believe that those guidelines are an absolute prohibition on past results on television ads. It [the guidelines] says the Bar generally will not approve past results on TV, radio, and billboards,” Glazer said. “It’s not an absolute prohibition. The concern is there is not enough time to communicate the disclaimer. Mr. Newlin has proposed two ads that prominently feature the disclaimer.
“We think this should not be difficult. They are short ads; they are objectively verifiable and they prominently feature the disclaimer.”
In a letter to the Bar, Glazer contended some of the new ad guidelines are unconstitutional but said the Newlin firm is nonetheless attempting to comply with them.
The guidelines approved by the board state that any amount claimed to have gone to a client in an ad in an acceptable advertising medium must be the net amount, and if the client received a structured settlement, the amount must be given in current dollars. They also mandate that unless the advertising law firm can show differently, any ad that includes a dollar amount award must have this disclaimer: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result” — which Newlin used in its ads.
Things considered misleading under the guidelines include:
* Advertising that the lawyer obtained a $1 million judgment without disclosing that the fees and costs exceeded the amount of the judgment or that the court issued a $500,000 remittitur.
* Advertising that the lawyer obtained a $1 million judgment without disclosing that the defendant offered to settle for $2 million.
* Advertising a success at trial without disclosing that the judgment was overturned on appeal.
* Advertising a success percentage without disclosing material limitations on the types of cases accepted (e.g., advertising a percentage of success in traffic ticket cases without disclosing that the percentage only includes minor infractions by first-time offenders.)
* Advertising by a criminal defense lawyer that an acquittal on one or more charges was obtained without disclosing that the client was convicted of other crimes in the same case.
The guidelines also state that lawyers cannot claim a win in a case when there are opposing claims or mixed results or if the judgment amount was substantially less than sought or less than a settlement offer.
Bar Ethics and Advertising Counsel Elizabeth Tarbert said there is uncertainty about interpreting the guidelines until the Board of Governors gets an appeal and applies them.
“I’m not sure I understand how the board intends the guidelines to be interpreted,” she said, adding that if the committee affirmed the staff position, then the Newlin firm could appeal to the board, which could make the final decision and also clarify how the guidelines should be applied.
Glazer, though, argued it was unfair to make the firm wait and the ads were an attempt to comply with the clear language of the guidelines.
The committee, after an extensive discussion, wound up directing staff, by a 3-1 vote, to find noncompliance based on its uncertainty on how to apply the guidelines.
Committee member Connie Bookman cast the no vote, saying, “I think they should run these ads. Under the guidelines we received, I don’t see where it crosses the line unless you don’t want money talked about at all.”
Committee member Al Alsobrook disagreed: “I think the board’s determination would be it doesn’t comply because in a 15- or 30-second ad, all the consumer is going to see is the money.”
Committee member Mike Faehner agreed with Tarbert that the committee needed more guidance.
“These are new guidelines and when Elizabeth is basically telling us, ‘Guys we need some guidance on these,’ we should defer to staff. I think we need to get some guidance from the Board of Governors on this,” he said.
It was during the discussion of the Newlin ads that Tarbert reported that Bar staff, acting on the board’s direction, had reviewed several hundred ads approved since the new Bar rules went into effect that contained past results. She said several hundred did not comply with the guidelines and the affected law firms would be notified.
The board, in approving the guidelines, said law firms with ads that were previously approved but do not meet the new guidelines would be given a reasonable amount of time to remove or change the ads.
