Questions about digital advertising?
Question: What are the advertising rules?
Answer: Subchapter 4-7 of the Rules Regulating The Florida Bar (“Information About Legal Services”) is commonly referred to as the “advertising rules.” These rules apply to lawyer advertisements in “all forms of communication in any print or electronic forum.” Rule 4-7.11(a). Pursuant to Rule 4-7.19, the Ethics and Advertising Department reviews lawyer advertising for compliance with Rules 4-7.11–4-7.15 and 4-7.18(b)(2).
Question: What must a digital advertisement contain?
Answer: Digital advertising must follow the same rules as more tangible forms of advertising. Every advertisement must contain the name of the advertising lawyer or law firm, and the city, town, or county of a bona fide office location of the lawyer or law firm. If the case will be referred to another lawyer or law firm, the advertisement must include a disclosure to this effect. All information required by the rules must appear in the same language used in the advertisement. If more than one language is used, the required information must appear in each language used. Any information required by the rules must be reasonably prominent, clearly legible, and intelligible. Rule 4-7.12 (Required Content). Additional disclosures and disclaimers may be required depending on the nature and content of the advertisement.
Question: Do digital advertisements need to be submitted for review?
Answer: Yes, just like a billboard, radio, or television commercial, unless one or more of the exemptions to the filing requirement applies, digital advertisements must be submitted for review for compliance with the advertising rules. Rule 4-7.19 (Evaluation of Advertisements).
One of the exemptions from the filing requirement applies to advertisements that are so basic that the advertisement solely consists of the information described in Rule 4-7.16 (Presumptively Valid Content). It is possible to put together an advertisement that contains the lawyer’s name, office location, website address, phone number, and field of law that would be considered exempt from the filing requirement. If creating an exempt advertisement is the goal — the simpler the better. Advertising lawyers should keep in mind that pursuant to Rule 4-7.16(a)(12) only certain illustrations and photographs can be utilized or the advertisement will need to be submitted for review. Also, no slogans or taglines can be utilized in an exempt advertisement.
In addition, advertisements only sent to existing clients, former clients, or other lawyers are exempt from the review requirement. Rule 4-7.20 (Exemptions from the Filing and Review Requirement).
Question: What about social media posts?
Answer: It depends. If the social media account is used by an individual lawyer solely for social purposes, the posts are not subject to the advertising rules and do not need to be submitted for review. However, if the social media account is used to promote a lawyer or a law firm practice, then the advertising rules apply.
If the posts are visible only to those who have chosen to follow a lawyer or a law firm’s feed, then the advertisements are not required to be submitted for review and are considered additional information upon request. Basically, the person following had the choice of whether to follow the lawyer and chose to receive advertising material from the lawyer.
However, if the lawyer or law firm wants to amplify the reach of posts through promotion or sponsorship, and the advertisement reaches people who have not chosen to follow the lawyer or law firm, then the post must be submitted for review.
Additional information regarding social media advertisements can be found in the “Advertising Guidelines for Social Networking Sites” on The Florida Bar’s website at: https://www.floridabar.org/ethics/etad/advertising-guidelines-for-networking-sites/.
Question: Do “ad words” need to be submitted for review?
Answer: Yes, unless the “ad words” solely consist of presumptively valid content, the advertisements must be submitted for review. Rules 4-7.16 and 4-7.20.
Question: Can I choose “ad words” that include my firm and me when someone is searching for a specific, other lawyer? For instance, if someone is specifically searching for Sam Smith accident lawyer, can I choose “ad words” that make my name, Jane Jones, appear instead?
Answer: Effective May 2, 2022, Rule 4-7.13(b)(12) prohibits the use of advertisements that state or imply that a lawyer or law firm is affiliated with the advertising lawyer when they are not. While the rule does not entirely prohibit a lawyer from advertising in Internet search results where the search terms include the name of another lawyer or law firm, the rule does prohibit any advertisements in those search results that do “not clearly indicate that the advertisement is for a lawyer or law firm that is not the lawyer or law firm used as the search term.” Comment to Rule 4-7.13.
Question: Are there are any other recent changes to the advertising rules?
Answer: Yes. Effective May 2, 2022, lawyers may initiate the routine mutual exchange of contact information with prospective clients at a business meeting or business-related social gathering. However, the lawyer cannot initiate any further discussion of a specific legal matter. As the Comment to Rule 4-7.18 (Direct Contact with Prospective Clients) explains, lawyers may also initiate the exchange of contact information on social media platforms established to promote the exchange of contact information by businesses and professionals–again with the caveat that the lawyer cannot initiate any discussion of specific legal matters. If initiated by the prospective client, the lawyer should always move any discussion of specific legal questions to a location where confidentiality can be ensured. Finally, this change does not allow a lawyer to track down a prospective client with a specific legal problem to a business meeting to initiate the exchange of contact information and specifically excludes the following from the definition of business meetings or business-related social gatherings: an accident scene, a hospital room of an injured person, or a doctor’s office.
Question: Can a YouTube personality endorse a law firm in an advertisement for a lawyer or law firm?
Answer: No. Rule 4-7.15 (Unduly Manipulative or Intrusive Advertisements) prohibits lawyer advertisements that contain the voice or image of a celebrity with the exception of a local announcer, disc jockey, or radio personality who does not endorse the lawyer or law firm or offer a testimonial on behalf of the lawyer or law firm. As explained in the Comment to Rule 4-7.15, the term celebrity includes any individual “known to the target audience[.]” The same reasons prohibit a YouTube personality from endorsing a lawyer or law firm. A YouTube personality may only appear in a lawyer’s advertisements if the YouTube personality regularly records advertisements, does not endorse the lawyer or law firm, and, if necessary, the advertisement states that the YouTube personality is not employee or member of the law firm.
Question: How do I submit advertisements for review?
Answer: A complete filing should include the following and should be mailed to The Florida Bar, Ethics and Advertising, 651 E. Jefferson Street, Tallahassee 32399:
• the advertisement in the form it will be used (e.g., a copy of a print advertisement, ad words, social media post, or a recording of a television, radio, or video advertisement on a DVD or USB drive)
• a filing fee of $150 for each advertisement being filed, make checks payable to The Florida Bar
• a transcript if the advertisement is a television, radio, or video advertisement that includes both spoken words AND all on-screen text
• a sample envelope if the advertisement is a direct mail that will be sent in an envelope
• an accurate English translation of any part of an advertisement that is in any other language; and
• the name of at least one lawyer who is responsible for the content of the advertisement.
Question: Are there any other resources that you can recommend?
Answer: Yes. The Advertising Rules in Subchapter 4-7, the “Handbook on Lawyer Advertising and Solicitation,” Sample Advertisements, Advertising Filing Requirements, Cover Sheets, Guidelines, Checklists, and more can be found here.
The YLD Social Media Pocket Guide may be accessed here.
Finally, please remember that if you ever have a question regarding advertising or any other issue in the Rules of Professional Conduct, you can seek written guidance from The Florida Bar’s Ethics & Advertising Department or contact the Ethics Hotline at 800-235-8619.