Florida Bar asks Florida Supreme Court to amend rules governing lawyers' websites to permit testimonials, past results, and characterizations of quality (if accompanied by disclaimer)  [Added 2/27/08]

    On February 26, 2008, the Florida Bar filed a petition asking the Florida Supreme Court to approve changes to current Rule 4-7.6, Florida Rules of Professional Conduct, which governs lawyer and law firm websites.  One of the more significant changes proposed would permit the interior pages of lawyers' websites to include truthful testimonials, past results obtained by the lawyers, and statements characterizing the quality of the lawyers' services – provided that these statements are factually verifiable and accompanied by appropriate disclaimers.

Proposed changes to current Rule 4-7.6 include:

• Homepages of lawyers' websites would be subject to the requirements of Rule 4-7.2 (the general lawyer advertising rule);

• A lawyer's website would not be required to disclose all jurisdictions in which the lawyer is licensed to practice;

• Interior pages of lawyers' websites would be subject to Rule 4-7.2, except that lawyers could include truthful and factually verifiable information testimonials, information about past results obtained, and descriptions or characterizations of the quality of the lawyers' services, provided that these items are accompanied by appropriate disclaimers;

• Email messages to prospective clients would continue to be governed by Rule 4-7.4 and would have to contain a subject line that begins with the words "LEGAL ADVERTISEMENT;"

• If not addressed by other portions of Rule 4-7.6, all unsolicited computer-accessed communications concerning lawyers or their services (e.g., banner ads, pop-up ads) would be subject to Rule 4-7.2; and

• Lawyers' websites would not be required to be filed with the Bar for review.

    To view the Bar's petition, the complete text of the proposed changes, and other accompanying materials please visit the "Rules Update" page of the Bar's website.

Federal court suit attacking Florida lawyer advertising rules survives challenges based on standing and abstention  [Added 3/21/08]

    The United States District Court for the Middle District of Florida denied motions by the Florida Bar seeking to derail a suit challenging a number of Florida's lawyer advertising rules.  (Click here to see the complaint.)  The Bar had urged the court to abstain from hearing the suit under the Pullman doctrine (Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 469 (1941)) so that some of the issues could be decided first in a state forum.  The court noted that abstention is not favored when First Amendment rights are at stake and that piecemeal resolution of claims is also not favored.  The court likewise rejected the Bar's contention that plaintiffs did not have standing.

    Plaintiffs William Harrell, his law firm Harrell & Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., sued the Florida Bar seeking declaratory and injunctive relief on the grounds that the challenged lawyer advertising rules violate the First and Fourteenth Amendments to the U.S. Constitution.  The court noted that "[s]pecifically, Plaintiffs challenge the following rules:

(a) Florida Rule of Professional Conduct § 4-7.1, to the extent it requires advertisements to provide only 'useful, factual information presented in a nonsensational manner;'

(b) Florida Rule of Professional Conduct § 4-7.2(c)(1)(D), to the extent it classifies a truthful statement as 'misleading' because the statement would also be true for many other lawyers;

(c) Florida Rule of Professional Conduct § 4-7.2(c)(1)(D), to the extent the rule prohibits statements that are 'unsubstantiated in fact' but that are unquantifiable, statements of opinion, or otherwise not false or misleading;

(d) Florida Rule of Professional Conduct § 4-7.2(c)(1)(G), which prohibits statements that 'promise results,' to the extent the rule prohibits statements that are unquantifiable, statements of opinion, or otherwise not false or misleading;

(e) Florida Rule of Professional Conduct § 4-7.2(c)(1)(I), which prohibits any communications that 'compares the lawyer's services with other lawyer's services,' to the extent the rule prohibits statements that are unquantifiable, statements of opinion, or otherwise not false or misleading;

(f) Florida Rule of Professional Conduct § 4-7.2(c)(2), which prohibits statements 'describing or characterizing the quality of the lawyer's services,' to the extent the rule prohibits statements that are unquantifiable, statements of opinion, or otherwise not false or misleading;

(g) Florida Rule of Professional Conduct § 4-7.2(c)(3), which prohibits 'visual and verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events' that are 'manipulative, or likely to confuse the viewer,' to the extent the rule prohibits statements that are not false or misleading; and § 4-7.5(b)(1)(A), to the extent it also prohibits such statements;

(h) Florida Rule of Professional Conduct § 4-7.5(b)(1)(C), which prohibits the use of 'any background sound other than instrumental music;'

(i) Florida Rule of Professional Conduct § 4-7.7(a)(1), which imposes a prior restraint on attorney advertising."

Harrell v. The Florida Bar, ___ F.Supp.2d ___ (M.D.Fla., No. 3:08-cv-15-J-33TEM, 2/29/2008), 2008 WL 596086.

Florida's lawyer advertising rules and regulation system are challenged in federal court  [Added 1/9/08]

    A Jacksonville lawyer, William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., have filed suit against the Florida Bar in the U.S. District Court for the Middle District of Florida.  The suit seeks declaratory and injunctive relief on the grounds that the challenged lawyer advertising rules violate the First and Fourteenth Amendments to the U.S. Constitution. 

    Public Citizen was a plaintiff in the recent suit that successfully challenged the constitutionality of many of the New York lawyer advertising rules (Alexander v. Cahill, ___ F.Supp.2d ___ (N.D.N.Y., No. 5:07-CV-117 (FJS/GHL), 7/23/2007), 2007 WL 2120024.

    Click here to see the complaint filed against the Florida Bar.

UPL for lawyer licensed only in New York to open Florida office and advertise for "N.Y. Legal Matters Only" or "Federal Administrative Law"  [Added 1/8/08]

    In an unpublished opinion the Eleventh Circuit affirmed a lower court decision that a lawyer licensed only in New York does not have a constitutional right to establish an office in Florida and advertise that he will represent clients on "New York Legal Matters Only" or "Federal Administrative Law."

New York Legal Matters Only.  The Florida Bar contended that the lawyer's advertising for these matters would be unlawful.  The court agreed.  "Under Florida law, it is unlawful for '[a]ny person not licensed or otherwise authorized to practice law in [Florida]' to practice law within the State of Florida.  Fla. Stat. § 454.23 (2004).  Gould, who is not admitted to the Florida Bar, does not have the authority to practice New York law in Florida.  See Fla. Stat., R. Regulating the Fla. Bar 4-5.5(b); Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003); Chandris, S.A. v. Yanakakis, 668 So.2d 180, 184 (Fla.1995); Florida Bar v. Savitt, 363 So.2d 559 (Fla.1978).  Because the proposed advertisement concerns unlawful activity, the Florida Bar is entitled to regulate the advertisement.  See Cent. Hudson, 447 U .S. at 563-64, 100 S.Ct. at 2350."

Federal Administrative Law.  The court rejected the lawyer's assertion that he could advertise and engage in a practice "limited to federal administrative law."  The court stated:  "The words ‘federal administrative law’ apply to a broad range of legal issues, and are not limited to the representation of persons before federal agencies.  Issues of federal administrative law arise in state and federal courts, as well as before federal agencies.  . . .  The proposed advertisement for a ‘practice limited to federal administrative law’ is misleading and relates, at least in part, to unlawful conduct.  Gould’s proposed speech is not protected by the First Amendment and is subject to regulation by the Florida Bar."  Gould v. Florida Bar (11th Cir., No. 06-15142, Dec 12, 2007) (not selected for publication in the Federal Reporter), 2007 WL 4403556 , affirming Gould v. Harkness, 407 F.Supp.2d 1357 (S.D.Fla. 2006).

Federal court strikes down many of New York's new lawyer advertising rules as unconstitutional under First Amendment  [Added 7/26/07]

    In a challenge to New York's newly adopted lawyer advertising rules, the United States District Court for the Northern District of New York has ruled that a number of those new rules are unconstitutional.  The declaratory judgment action was filed by a New York law firm and an advocacy group.

    The court began by noting that the Central Hudson test applied to the new regulations, despite the state's argument that the Central Hudson test should not apply to a ban on lawyer advertising that was "irrelevant, unverifiable, [and] non-informational."  Under Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980), a state seeking to restrict commercial speech (which includes lawyer advertising) must (1) show that there is a substantial state interest to be served by the restriction, (2) demonstrate that the challenged restriction materially advances the substantial state interest, and (3) establish that the challenged restriction is narrowly tailored.  Turning to the regulations at issue, the Court made several rulings.

    The court struck down a number of the new rules as unconstitutional under the First Amendment because the state could carry its burden regarding the second prong of the Central Hudson test.  The state failed to submit evidence sufficient to show that the following rules materially advance the state's asserted (and accepted by the court) substantial state interest of protecting consumers from potentially misleading lawyer ads, and thus these rules were held to be unconstitutional:

        • a rule "prohibiting endorsements and testimonials from a client about a pending matter" (New York's DR 2-101(c)(1); Sec. 1200.6(c)(1), N.Y. Comp. Codes R. & Regs. title 22);

        • a rule "prohibiting the use of techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence" (DR 2-101(c)(5); Sec. 1200.6(c)(5), N.Y. Comp. Codes R. & Regs. title 22);

        • portions of a rule "prohibiting the use of a nickname, moniker, or motto that implies an ability to obtain results" (DR 2-101(c)(7); Sec. 1200.6(c)(7), N.Y. Comp. Codes R. & Regs. title 22); and

        • portions of a rule "prohibiting the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated in a firm, or otherwise implying that lawyers are associated in a firm if that is not the case" (DR 2-101(c)(3); Sec. 1200.6(c)(3), N.Y. Comp. Codes R. & Regs. title 22).

    Two other rules were held to be unconstitutional because the state did not meet the third prong of the Central Hudson test.  The court indicated, however, that these rules could have been saved if they had provided for the use of an appropriate disclaimer:

        • portions of a rule prohibiting portrayals of judges in lawyer ads (DR 2-101(c)(3); Sec. 1200.6(c)(3), N.Y. Comp. Codes R. & Regs. title 22); and

    Finally, the court concluded that the challenged rules did not apply to non-profit legal organizations that do not charge clients.  Alexander v. Cahill, ___ F.Supp.2d ___ (N.D.N.Y., No. 5:07-CV-117 (FJS/GHL), 7/23/2007), 2007 WL 2120024.

NEVADA AMENDS LAWYER ADVERTISING RULES TO REQUIRE, INTER ALIA, THAT LAWYER ADS BE SUBMITTED TO THE STATE BAR FOR REVIEW  [Added 5/8/07] --

    Nevada Rule of Professional Conduct 7.2A requires that Nevada lawyers submit their ads to the State Bar for review.  Ads may be submitted for review prior to publication, but the rules only require that ads be submitted within 15 days of their first dissemination.

FLORIDA BAR BOARD OF GOVERNORS APPROVES RULE ALLOWING PAST RESULTS, TESTIMONIALS, AND CHARACTERIZATIONS OF QUALITY IN LAWYERS' WEBSITES WITH DISCLAIMER  [Added 3/30/07]

    At its meeting on March 30, 2007, the Florida Bar Board of Governors unanimously approved revisions to current Rule 4-7.6, Florida Rules of Professional Conduct, governing lawyers' websites.  If approved by the Florida Supreme Court, the revised rule would require a website's homepage to comply with all of the Rule 4-7.2 requirements, but would permit the interior pages to include past results, testimonials, and statements characterizing the quality of the lawyers' services -- providing that they are factually verifiable and contain appropriate disclaimers.  Lawyers' websites would remain exempt from the filing-and-review requirements of Rule 4-7.7 (see Rule 4-7.8(e)).

    The revised rule approved by the Board reflect a less stringent approach than that recommended by a majority of the Bar's Special Committee on Website Advertising Rules, which had recommended the general lawyer advertising rules set forth in Rule 4-7.2 should apply to all parts of lawyers' websites.  The Board of Governors rejected that recommendation.

    The revised rule will be submitted to the Florida Supreme Court with the biannual filing of amendments to the Rules Regulating The Florida Bar.  An official notice of the filing must be published in the Florida Bar News at least 30 days in advance of the filing.

    Click here to see the text (in legislative format) of the revised rule as approved by the Board of Governors.

FEDERAL TRADE COMMISSION STAFF CRITICIZES FLORIDA'S PROPOSED REGULATIONS GOVERNING LAWYER WEBSITES AND OTHER COMPUTER-ACCESSED COMMUNICATIONS  [Added 3/24/07]

    On March 23, 2007, the staff of the Federal Trade Commission ("FTC"), with the approval of the FTC commissioners, filed comments with the Florida Bar criticizing the Bar's proposed amendments to current Rule 4-7.6 of the Florida Rules of Professional Conduct.  The rule addresses "computer-accessed communications."

    The FTC staff's comments state in part:  "As a general principle, it is important to protect consumers of legal services from deceptive and misleading advertising.  The Proposed Rule, however, unnecessarily restricts truthful and non-misleading advertising, may result in higher prices paid for legal services and less consumer choice."  The comments also criticize features of Florida's existing regulations governing lawyer advertising, including the ban on testimonials and the requirement that many ads be filed with the Bar for review.

FLORIDA SUPREME COURT AMENDS LAWYER ADVERTISING RULES EFFECTIVE 1/1/2007; PRE-SCREENING OF TV AND RADIO ADS NOW REQUIRED  [Added 11/3/06]

    PLEASE NOTE this IMPORTANT UPDATE:  On November 17, 2006, the Florida Bar filed with the Florida Supreme Court a Motion for Reconsideration in this matter.  Essentially, the Bar seeks clarification as to the effect of several of the Court's decisions.  Among other things, in light of the rules as amended by the Court the Bar has asked the Court:  whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request.  On December 20, 2008, the Court denied the Bar's Motion for Reconsideration but issued a revised opinion.  In re: Amendments to Rules Regulating The Florida Bar -- Advertising Rules, ___ So.2d ___ (Fla., SC05-2194, 12/20/2007) (revised opinion).

    The Florida Supreme Court has acted on the Florida Bar's petition to amend the lawyer advertising rules in a number of respects.  The amendments become effective on January 1, 2007.

    Among the changes requested by the Bar and approved by the Court are the following:  

• television and radio ads must be pre-filed with the Bar at least 15 days before airing (new Rule 4-7.7(a)(1)(A));

• out-of-state lawyers who practice in Florida are expressly subject to Florida's advertising rules (new Rule 4-7.1(c));

• a Florida lawyer's communications to the lawyer's family members are exempt from the advertising rules (new Rule 4-7.1(e));

• communications by a Florida lawyer to prospective clients that are made at a prospective client's request are exempt from the advertising rules (new Rule 4-7.1(f));

• the ban on any reference to "past successes or results obtained" has been replaced by a prohibition on communications that "promise[] results" (new Rule 4-7.2(c)(1)(G));

• visuals that are likely to "confuse" a viewer are prohibited (new Rule 4-7.2(c)(3));

• every ad for a lawyer referral service must affirmatively disclose that fact (new Rule 4-7.10(1)(10));

• the types of information that may be included in "public services announcements" (which are exempt from the filing-and-review requirement) has been substantially expanded (new Rule 4-7.8(b) and new Rule 4-7.2(b)(3));

• the "hiring" disclosure statement previously required in print advertising is no longer required;

• the rule against "unfair" advertising has been deleted; and

• advisory advertising opinions rendered by the Bar finding an ad in compliance are binding on the Bar (rather than merely advisory) in grievance proceedings (new Rule 4-7.7(a)(1)(F), new Rule 4-7.7(a)(2)(F)).

    As discussed below, the Court declined to adopt several of the Bar's proposals:  

• The Bar had proposed several changes to the rule governing computer-accessed communications, which include lawyers' websites.  The Court declined to adopt these proposals, stating:  "[T]he Court notes that the [Bar's] Board [of Governors] has appointed a special committee to review issues regarding websites and Internet communications.  The special committee is charged with making recommendations to the Board if appropriate.  Thus, it is not efficient or sound for the Court to address the regulation of Internet advertising at this time, while the special committee is studying these very issues.  Accordingly, the Court does not adopt the [proposed rule changes].  The Court will consider the regulation of Internet communications when the Bar files the report of the special committee."

• The Bar proposed that communications directed to other lawyers, and communications directed to a lawyer's current or former clients, be exempt from the advertising rules.  In declining to adopt these proposals, the Court stated:  "We request further information from the Bar as to why communications between lawyers, and communications with current and former clients, should be exempted from the advertising rules, including any research or evidence supporting such exemptions.  We defer adoption of those two exemptions at this time."  (The Court also declined to adopt the Bar's proposed definition of "prior professional relationship" contained in the comment to the proposed rule that would have stated that the advertising rules did not apply to certain "prior professional relationships.")

• The Bar requested elimination of the requirement that a disclosure be made when a non-lawyer spokesperson is used in a television or radio ad in ads in which it would be apparent from the context of the ad that the person was not a lawyer.  The Court rejected this proposal, stating:  "In comparison to the proposal, the established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public.  Therefore, the Court does not adopt the proposal."

    Finally, and perhaps quite significantly, the Court concluded by requesting "that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising."

    For a rule-by-rule summary prepared by Florida Bar Ethics Counsel Elizabeth Clark Tarbert, click here.

    As noted above, these amendments become effective on January 1, 2007.  In re: Amendments to the Rules Regulating The Florida Bar -- Advertising, ___ So.2d ___, 31 Fla.L.Weekly S767 (Fla., No. SC05-2194, 11/2/2006).

Including law firm logo on outside of targeted direct mail brochure does not violate rule against disclosing nature of recipient's possible legal problem.  [Added 9/13/06]  --  The Florida Bar v. Gold, 937 So.2d 652 (Fla. 2006).

Information gained through discovery regarding identity of defendant's customers cannon be used by plaintiff to solicit customers to file suits.  [Added 6/29/06]  --  American Trades Institute of Florida, Inc. v. Sanchez, 932 So.2d 534 (Fla. 3d DCA 2006).

Florida Supreme Court disciplines lawyers who used pit bull logo and "1-800-PIT-BULL" phone number.  [Added 11/17/05]  --  The Florida Bar v. Pape, 918 So.2d 240 (Fla. 2005).

Lawyer involved in soliciting clients through acts of "paralegal" disbarred rather than suspended.  [Added 3/21/05]  --  The Florida Bar v. Barrett, 897 So.2d 1269 (Fla. 2005).