FIRST AMENDMENT BEATS FLORIDA BAR ADVERTISING RULE

The Florida Bar’s rules on attorney advertising can be charitably described as byzantine. Want to use a photograph of yourself in an ad? Lucky for you there’s a rule on what kinds of photo backgrounds don’t violate the rules: “a single solid color or a plain unadorned set of law books.” Want to use words? There’s a specific rule that says you can use punctuation marks in advertisements. But keep in mind that lawyers are prohibited from soliciting clients via telegraph. Have a virtual office and want to advertise? Too bad – the rules require that you have a “bona fide” office location before putting out any advertisement.

The way the Florida Bar handles attorney advertising is a lot like the way Dudley Do-Right handles law and order – concentrate on the little meaningless nit-picky infractions and ignore what’s actually happening, because it’s “the right thing to do.”

Needless to say, these rules get challenged from time to time. The Northern District of Florida has just issued an opinion striking down one of the Florida Bar’s more clumsy and overbroad advertising rules. The rule in question was this:

A lawyer may not engage in potentially misleading advertising. Potentially misleading advertisements include, but are not limited to: 

references to a lawyer’s membership in, or recognition by, an entity that purports to base such membership or recognition on a lawyer’s ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria, and that includes among its members or those recognized a reasonable cross-section of the legal community the entity purports to cover;

a statement that a lawyer is board certified, a specialist, an expert, or other variations of those terms unless:

(A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization; or

(C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization.

In the absence of such certification, a lawyer may communicate the fact that the lawyer limits his or her practice to 1 or more fields of law.

Essentially, this rule made it an ethics violation for any lawyer to advertise that they were “specialized” or an “expert” in any area of law unless they were board certified by the Bar. This led to some problems.

First, many lawyers specialize or have expertise in different areas of law. That’s why clients hire different lawyers to do different things – because they want someone who “specializes” in that area. This rule applies even if the lawyer does indeed “specialize” in a certain area but isn’t board certified, either because they haven’t met the requirements, or because they Bar doesn’t offer board certification in that area.

The lawyers in this case fell into the group where the Bar doesn’t actually offer board certification in their particular practice areas: mass tort and unsafe products litigation. I’m pretty sure that these lawyers would have become board certified in these areas if they could, but tough cookies – the bar doesn’t offer these board certifications. And because the Bar doesn’t offer board certification in these areas, these lawyers couldn’t say they specialized or had expertise in these areas even though the Bar agreed that they did. From the opinion:

Instead, the Bar prohibits even truthful claims. Searcy Denney has expertise in mass-tort and unsafe-product cases, as well as in personal-injury cases generally. The Bar has not denied it and could not reasonably do so. But Rule 4-7.14 prohibits Searcy Denney from noting on its website that it has expertise in these areas. Indeed, the Bar prohibits every lawyer in the state from claiming expertise in mass-tort or unsafe-product cases, because there is no board certification in these narrow fields. And the Bar prohibits every law firm in the state from claiming expertise in personal-injury cases, because law firms, as distinguished from individual lawyers, cannot be board-certified

The Bar’s restriction didn’t end there. Indeed, it prohibiting the law firm from using terms like “success” or “justice.” From the opinion:

The Ethics and Advertising Division and the Standing Committee on Advertising also said Searcy Denney could not say it has “32 years of experience handling mass tort cases, resulting in justice for clients in a wide variety of circumstances,” or that it was “one of the few law firms in the country to successfully represent innocent victims of dangerous herbal supplements.” The theory was that “justice” and “successfully” are not objectively verifiable. The Bar has not renounced these positions.

I guess consumers might have different concepts of what “justice” and “success” are, but come on.

The most hilarious overreaches by the Bar were withdrawn before the case got to federal court, but the judge commented on them anyway:

The Bar’s Ethics and Advertising Division and the Bar’s Standing Committee on Advertising provided rather remarkable responses, opining, for example, that Searcy Denney could not include on its website the following statements (deemed not to be objectively verifiable and thus to be forbidden): the days “when we could trust big corporations . . . are over”; “Government regulation of Corporate America’s disregard of consumer safety has been lackadaisical at best”; and “when it comes to ‘tort reform,’ there is a single winner: the insurance industry.” In defense of this lawsuit, the Bar has backed away from these obviously unconstitutional positions; the Bar no longer asserts it can prohibit an attorney from making political statements like these.

Translation: the Bar believes, in its cold, tiny, First-Amendment violating heart, that it can prevent attorneys from making political statements on the internet. This also means Bar thinks it can ethically discipline me for what I just said about it, because I can’t objectively verify that it has a heart, much less a cold, tiny one that wants to violate my First Amendment rights by telling me what I can and can’t say on the internet.

The federal judge found that the Florida Bar’s rule against lawyers and law firms truthfully using the words “specialty” or “expertise” is a violation of the First Amendment. The key here is the caveat – the claim must be truthful – i.e. the lawyer must actually specialize in that area. I could not say that I specialize in landlord-tenant disputes, since in my career I’ve handled maybe two cases total.

The judge also gave average consumers the credit they’re due. The Bar takes a paternalistic approach and repeatedly claims that it must protect consumers from misleading advertising via rules like the one the judge struck down:

[T]he Bar’s approach is unlikely to solve the problem it posits. The Bar readily allows a lawyer to assert that the lawyer handles only cases of a specific kind. So a lawyer can say personal-injury cases are all the lawyer handles, or that personal-injury cases are the lawyer’s business. The Bar apparently believes that a potential client will attribute a different meaning to these assertions than to the assertion that a lawyer specializes or has expertise in personal-injury cases. But the Bar has offered no empirical or even anecdotal support for the supposition.

As I’ve said before, byzantine rules like the Bar’s rules on advertising favor entrenched interests and hurt small practices and consumers. Hopefully we’ll start to see more decisions like this one in the very near future.

OddEric Readinger