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Rules for lawyer websites are now being fast-tracked

Senior Editor Regular News

The Florida Supreme Court has asked The Florida Bar to submit its guidelines for lawyers’ websites as an amendment to Bar Rule 4-7.6 (Computer Accessed Communications), which addresses websites and becomes effective on July 1.

The Bar, in response, has begun a fast-track process to prepare the rule amendment.

It’s the latest step in a multi-year effort to set guidelines for lawyers on what they can say on their websites.

The Bar, 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. In other words, the opinion had the potential to make almost every attorney and law firm website in violation of Bar advertising rules.

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 committee responded by suggesting a bifurcation of attorney websites. Those sections that contain testimonials, refer to past results, or characterize the quality of legal services, or otherwise don’t comply with Rule 4-7.2, would not be generally accessible to random w eb surfers. Access would require the viewer to click a button or take another affirmative step after viewing a disclaimer.

In a letter to the Supreme Court explaining the Bar’s actions, Bar Executive Director John F. Harkness, Jr., wrote, “The Standing Committee on Advertising determined that an appropriate disclaimer, before giving a user access to website pages that do not comply with the lawyer advertising rules, must include what type of information will be viewed, that the information is not reviewed or approved by The Florida Bar, and if past results or testimonials are provided, that a prospective client’s facts and circumstances may differ from the matter in which results or testimonials are provided, whether all results or testimonials of all clients are provided, that the results or experience of the client giving the testimonial are not necessarily representative, and that every case is different and each client’s case must be evaluated and handled on its own merits.”

The guidelines require that the viewer acknowledge viewing the disclaimer or alternatively provide the lawyer or law firm sponsoring the site with contact information that includes an acknowledgement that the viewer wants to receive additional information about the lawyer or law firm.

The court responded to Harkness’ letter with an order on March 31 and said while it liked the procedure, it wanted to see it included in the advertising rules rather than just as a policy.

“The court rejects the [advertising] committee’s use of the guidelines as an interpretation of the current rules. . . , ” the court said in its order to the Bar. “Although an amendment to the rule is required, the court agrees with the committee that its described guidelines are consistent with the court’s suggested approach.. . . Accordingly, we direct The Florida Bar to submit proposed rule changes consistent with the approach described within the guidelines.”

Chief Justice Peggy Quince dissented from the order, without an explanation.

Bar Ethics Counsel Elizabeth Tarbert said the Bar hopes to file a proposed rule with the court around June 1.

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