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Regulation of Attorney Advertising: Where We Were, Are, And May Be Going Where We Were: Before And After Bates
Commercial Free Speech and Lawyer Advertising The U.S. Supreme Court has held that the First Amendment protects commercial speech; however, the regulation of commercial speech is subject to a lower standard of judicial scrutiny than other forms of speech. Recently, there have been efforts by both the Supreme Court of Florida and The Florida Bar, through amendments to the advertising rules and other initiatives, as well as the Florida legislature, through a recent House bill, to modify both the Bar rules and Florida law as it relates to attorney advertising. This article will briefly address the legal background of regulations, their current status, and where these efforts may lead. The 1976 U.S. Supreme Court opinion in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. held for the first time that the First Amendment protects commercial speech so that consumers receive the full benefits of a free market. In Virginia Board of Pharmacy, the Court stated that society also has a strong interest in the free flow of commercial information and individual advertisements, though entirely "commercial," may be of general public interest. The opinion did assert; however, that commercial speech could be restricted more than political speech. The U.S. Supreme Court first applied the First Amendment commercial free speech doctrine to attorney advertising in Bates v. State Bar (1977), citing Virginia Board of Pharmacy as a basis for its decision. The Bates opinion stated that the individual States could not prohibit attorneys from advertising the prices at which certain routine services will be performed.
Where We Are: The Conflict Between First Amendment Free Speech v. The Need For Regulation Florida and U.S. Supreme Court Cases Since Bates: Refinement Of Commercial Speech And The “Privacy” Analysis The U.S. Supreme Court formulated a basic framework for analyzing any regulation of commercial speech under the First Amendment in Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York (1980). Under Central Hudson Gas, the government may ban commercial speech that is deliberately misleading or relates to unlawful activity, but if it does neither of these things, any restriction must meet a three-pronged test: 1) it must address an asserted substantial governmental interest; 2) it must directly advance the asserted interest and; 3) it must be narrowly tailored to serve the asserted interest. Since Bates, the U.S. Supreme Court has rendered additional decisions on lawyer advertising. These cases set forth specific types of advertising which are protected by commercial free speech and permitted restrictions. States cannot prohibit attorneys from: 1) advertising the costs of certain routine legal services in the print media; 2) advertising an accurate listing of the attorney's areas of practice through general mailings announcements to specific targeted groups, or through newspaper or telephone advertisements; 3) advising targeted groups of their rights to specific types of and the attorney's availability to handle such litigation; 4) direct mail to individuals with specific legal problem; 5) in person solicitation, where the attorney is motivated by the desire to promote political and ideological goals and not for purely monetary gain or; 6) advertising the attorney’s certification as a trial specialist by a recognized national organization. The States are permitted to: 1) ban in-person solicitation when the attorney is motivated purely for monetary gain; 2) impose certain restrictions on advertising, such as requiring the attorney to a) make disclosures concerning his fee arrangements; b) set forth a disclaimer explaining that the listing of areas of practice does not constitute a certification of expertise; 3) place reasonable restrictions on advertising which are necessary to prevent untruthful, false, deceptive, or misleading statements and; 4) place reasonable restrictions on the advertising of an attorney’s certification in a specialty by requiring a disclaimer to prevent misrepresentation or mistake. In The Florida Bar v. Went For It, Inc. (1995), the U.S. Supreme Court upheld amendments to the advertising rules of The Florida Bar which prohibit any targeted advertisements in wrongful death and personal injury matters for a thirty-day period. The opinion stated that the rules did not adversely affect the disclosure of truthful, relevant information and the thirty-day ban on targeted direct mail solicitation of accident victims involved only a short temporal ban that was narrow in scope and duration and concerned sensitive privacy issues. The opinion analyzed the issues using the Central Hudson Gas test; however, there was extensive discussion of the public’s right to privacy as justification for the restriction, which was asserted by The Florida Bar as a substantial governmental interest. Justice Kennedy strongly dissented and criticized the opinion for permitting a regulation that was extremely disproportionate to the harm it was intended to prevent. After Went-For-It, Congress enacted a thirty-day prohibition on communications with victims and their families after a foreign or interstate airliner crash.
Where We May Be Going: U.S. and Florida Supreme Court Opinions, Recent Amendments to the Advertising Rules, Legislative Initiatives, and Current Trends
In a May 20, 2004 opinion, the Florida Supreme Court implemented amendments to the Bar Advertising rules which relax restrictions on certain attorney advertising. The amendments eliminate the requirement that visual and verbal portrayals "must be objectively relevant to the selection of an attorney” and that illustrations be "directly related and objectively relevant to a viewer's need for legal services in a specific type of matter". The new rules allow any visual image in television advertisements that is otherwise permitted in the rules, but prohibit the use of celebrities and maintain the prohibition against background sounds other than instrumental music in television and radio advertisements. The Florida Bar’s Advertising Task Force 2004 The Bar’s Advertising Task Force 2004 has been charged with reviewing the attorney advertising rules and recommending changes to the rules, if same are deemed necessary, including any changes to clarify the meaning of the rules and provide notice to Florida Bar members of the rules’ requirements. Included within this charge is an analysis of the advertising filing and review requirement, including consideration of mandatory review prior to dissemination of advertisements. The task force has begun public meetings and is expected to make a final report to The Florida Bar’s Board of Governors in the fiscal year 2004-05. 2004 Legislative Efforts to Regulate Attorney Advertising HB 1357 by Rep. David Simmons was passed by the Florida House on March 25, 2004 by a vote of 104-8 but died in the Florida Senate Judiciary Committee on April 30, 2004. The bill amends F.S Chapter 877 and, according to the House staff summary, makes it “unlawful to advertise using any form of electronic or other media, in a manner that solicits legal business for a profit.” The term “solicit” is defined to mean “entreating, requesting or inciting another to use the services of an attorney or law firm…however the bill provides that this term specifically does not mean, include, or prohibit a statement in such advertisement of: the name of an attorney or law firm; the type of practice of such attorney or law firm; the right of an injured or aggrieved person to seek redress if such person’s rights have been violated; a public service type announcement, so long as it does not entreat, request, or incite another to use the services of an attorney or law firm; or matters or information specifically permitted by the Florida Bar’s rule relating to advertising.” The bill states that all forms of electronic or other media advertising by attorneys or law firms not permitted by the solicitation of legal business statute are prohibited. There is a civil penalty of $1000 for the first offense and $10,000 for each subsequent offense. The bill also provides that such unlawful attorney advertising may be the basis for an injunction based on a presumption that no legal remedy is sufficient. The bill provides that the Attorney General and The Florida Bar have standing to pursue enforcement of the law. The Florida Bar took the legislative position regarding House Bill 1357 that “The Florida Bar favors the most restrictive limitations on lawyer advertising consistent with constitutional requirements”; however, the law would appear to be subject to a strong constitutional challenge if implemented in its current form.
The Bar’s Statewide Advertising Grievance Committee The Statewide Advertising Grievance Committee was appointed in July 2002 and has the responsibility of reviewing all advertising inquiry/complaints from throughout the State of Florida. The stated goal is to promote and have uniformity and consistency in prosecuting Bar advertising violations. Conclusion By asserting the public’s right to privacy and prevailing in the U.S. Supreme Court’s Went-For-It decision, The Florida Bar established an additional privacy basis for asserting a substantial governmental interest in defending advertising restrictions under the Central Hudson Gas test. The Bar also recently created a task force to review and make any appropriate changes to the rules, and a statewide advertising grievance committee to attempt to standardize enforcement of the advertising rules. Meanwhile, the Florida legislature entertained a bill in the last session which is much more restrictive than the current Bar rules (and which may be subject to constitutional challenge). Conversely, the Florida Supreme Court recently amended the rules to relax some restrictions on advertising. As we all know, it is highly unlikely that the attorney advertising proverbial “horse” will ever be placed “back in the barn”; however, Went-For-It and recent legislative efforts indicate that attempts to push the horse back to the general vicinity of the barn will continue in the future. |
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