Florida Supreme Court grants Florida Bar's motion for extension of time to respond to comments filed in website rules case.  [Added 7/24/10]

    The Florida Supreme Court has granted the Florida Bar's motion for extension of time to file its response to comments that several interested bar members have filed regarding the Bar’s pending petition to further amend the website rule.

    The Court previously amended the website rule to specify that all of the lawyer advertising rules (except the filing requirement) will apply to websites.  The Court has stayed implementation of that rule until 90 days after it hands down a decision on the Bar’s latest proposed rule change, which, if approved, will spell out procedures that a lawyer or law firm could use to turn a website (or a portion of it) into information “requested” by the viewer.  The "requested" information would be exempt from the advertising rules, thus allowing inclusion of things like testimonials, statements characterizing the quality of services, and listings of past results.

    The Bar has until September 7, 2010, to file its response.  As a practical matter, this extension means that any final action by the Florida Supreme Court on the website rule likely will not take effect before the end of this year.

    Follow the progress of this matter on sunEthics.com.

Florida Supreme Court amends rules regarding lawyer-to-lawyer and lawyer-to-client communications.  [Added 7/9/10]

    Ruling on a request from the Florida Bar, the Florida Supreme Court adopted rules that expressly exempt lawyer-to-lawyer and lawyer-to-client communications from the Bar's advertising rules.  These communications remain subject to other Rules of Professional Conduct, including the conflict rules and the rule against conduct involving dishonesty, fraud, deceit, or misrepresentation.

    New Rule 4-7.1(e) will provide:  "Subchapter 4-7 shall not apply to communications between lawyers."  This was the text as proposed by the Bar.

    In adopting the rule regarding communications with current or former clients, the Court added language on its own motion to emphasize that this rule may not be used to circumvent other advertising rules that should apply.  The Court's language also specifies that, for purposes of this rule, "former clients" of a lawyer do not include a public entity's clients or former clients.  New Rule 4-7.1(g) provides:  "Subchapter 4-7 shall not apply to communications between a lawyer and that lawyer’s own current and former clients.  However, a lawyer shall not provide advertising materials to the lawyer’s own current or former clients that the lawyer received from other attorneys – a lawyer shall not serve as a conduit for other attorneys’ advertising.  Further, as used in this rule, the term 'former clients' does not include the clients or former clients of a public entity."

    The Court cautioned:  "One of the purposes of the advertising rules is to protect members of the public from false or misleading advertisements.  With this purpose in mind, we state that lawyers are prohibited from using these two exceptions to evade the requirements of the advertising rules.  A lawyer shall not provide advertising materials to the lawyer’s own current or former clients that the lawyer received from other attorneys.  This shall include lawyer-to-lawyer newsletters and brochures, if the attorney who supplied those materials is prohibited from directly distributing them to the general public."

    The Court also ordered the Florida Bar to "undertake a comprehensive and contemporary study of marketing," noting that "it has become apparent that there are differences between advertising and marketing."

    The new rules and revised Comment to Rule 4-7.1 become effective on October 1, 2010.  In re: Amendments to Rule Regulating The Florida Bar 4-7.1 – Lawyer-to-Lawyer and Lawyer-to-Client Communications, __ So.3d ___, 35 Fla.L.Weekly S435 (Fla., No. SC09-394, 7/8/2010), 2010 WL 2680264.

Eleventh Circuit reverses summary judgment and allows challenges to some lawyer advertising rules to go forward.  [Added 6/18/10]

    A Jacksonville lawyer, William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., filed suit against the Florida Bar in the U.S. District Court for the Middle District of Florida.  The suit challenged certain lawyer advertising rules and sought declaratory and injunctive relief on the grounds that the rules violated the First and Fourteenth Amendments to the U.S. Constitution. The court granted the Bar's motion for summary judgment.  The plaintiffs appealed.  The Eleventh Circuit affirmed in part, reversed in part, and remanded.

    The court summarized its decision:  "After thorough review, we conclude that Harrell’s facial vagueness challenge is justiciable with respect to five of the nine challenged rules.  [Those 5 rules are:  Florida Rule of Professional Conduct 4-7.2(c)(1)(G) (prohibits statements that 'promise results'); Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); Rule 4-7.2(c)(3) (prohibits 'visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events that are deceptive, misleading, manipulative, or likely to confuse the viewer'); Rule 4-7.5(b)(1)(A) (prohibits TV and radio ads containing 'any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer'); and Comment to Rule 4-7.1 ('Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner').]  As to all but one of the nine rules, however, we agree with the district court that Harrell’s as-applied First Amendment challenge is not ripe, and therefore is nonjusticiable.  [The one rule for which the as-applied challenge is ripe is Rule 4-7.5(b)(1)(C) (prohibits TV and radio ads containing 'any background sound other than instrumental music').]  Turning to the question of Harrell’s slogan, we agree with Harrell that his challenge to the Bar’s rejection of 'Don’t settle for less than you deserve' is not moot.  Finally, we conclude on the merits that the Florida Bar’s twenty-day prefiling rule is constitutional."  Harrell v. The Florida Bar, ___ F.3d ___ (11th Cir., No. 09-11910, 6/17/2010), 2010 WL 2403344.

Florida Supreme Court delays implementation of new website advertising rules.  At Court's direction, Florida Bar asks for changes to those rules.  [Added 6/10/10]

    By its order dated June 10, 2010, the Florida Supreme Court has delayed the implementation of the new website advertising rules.  The rules will now take effect "90 days from the date of the Court's ruling on In re: Amendments to the Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, SC10-1014.  For more information, see the Florida Bar's website or watch sunEthics.com for updates.

    The Florida Supreme Court previously approved substantial revisions to the rule governing lawyer and law firm websites.  This new version of Rule 4-7.6 takes effect on July 1, 2010.  (Click here for a summary of the changes.)

    Following up on the Court's action, the Florida Bar's Standing Committee on Advertising adopted "Guidelines for Lawyer and Law Firm Websites" to help lawyers bring their websites into compliance with the new rule.  The Bar submitted these Guidelines to the Supreme Court for informational purposes.  The Court responded by informing the Bar that the Guidelines were more than an "interpretation" of the rules and directed the Bar to submit to the Court proposed rule changes that would be consistent with the approach described in the Guidelines.

    The Bar has filed the proposed rule changes with the Court.  Additionally, the Bar has asked the Court to delay implementation of the previously-approved changes.

    Click here to see the proposed rule changes.  Click here for an informative story in the June 15, 2010, issue of the Florida Bar News.

Watch sunEthics.com for updates.

Florida Supreme Court disciplines lawyer for using firm name containing term "expert."  [Added 5/21/10]

    The Florida Supreme Court issued an order in a disciplinary case enjoining Lawyer from using the term "Expert" or "Experts" in any ad or trade name, and placing him on probation for one year (with conditions that he attend the Bar's Advertising Workshop and have the Bar pre-approve his ads).

    Justice Pariente wrote a concurring opinion in which 2 other justices joined, explaining that Lawyer was disciplined "because he used the trade name 'Legal Experts,' when he was a sole practitioner who was not certified by The Florida Bar in all fields of specialization.  The use of this trade name is misleading to the public."  The concurring opinion further noted that Lawyer "had been using this trade name since April 2006, prior to our approval of the Bar's request to allow lawyers who are board-certified by The Florida Bar to identify themselves as 'experts'."

    Justice Lewis vigorously dissented, continuing to express his dissatisfaction with the Court's approval of the rule change that permitted board-certified lawyers to describe themselves as "experts."  (See In re Amendments to the Rules Regulating the Fla. Bar, 978 So.2d 91 (Fla. 2007) (Lewis, J., concurring in part and dissenting in part); In re Amendments to the Rules Regulating the Fla. Bar – Advertising, 971 So.2d 763 (Fla. 2007) (Lewis, J., concurring in part and dissenting in part).)  His dissenting opinion stated in part:  "[A]n individual in accordance with the Rules Regulating the Florida Bar and this Court's approval was allowed to hold himself out under the very inappropriate label of 'expert,' but is being disciplined under these disjointed advertising rules for engaging in practices which The Florida Bar urged this Court to allow.  I do not dissent because I approve of the actions taken by [Lawyer] – in fact, I fully disapprove of the concept of The Florida Bar designating 'experts.'  However, the fundamental and primary problem rests in this Court‘s approval of the use of the term 'expert' in the first place.  This Court should have never allowed attorneys to exploit inexperienced clients by adopting the unverifiable, qualitatively based designation of 'expert.'  This nonsensical advertising farce is demonstrated by a situation recently before this Court.  We first allowed a lawyer to be identified as an 'expert' in appellate law only to discover that he was not qualified to handle capital cases before this Court.  This resulted in the Court reporting the deficiencies and actually precluding him from handling capital cases here.  See Admin. Order No. AOSC10-6 (Fla. Sup. Ct. Feb. 19, 2010)."  Florida Bar v. Doane, __ So.3d ___, 35 Fla.L.Weekly S278 (Fla., No. SC08-1278, 5/20/2010), 2010 WL 1997127.

Florida Supreme Court amends rules governing mediator advertising and marketing practices.  [Added 4/2/10]

    The Florida Supreme Court approved amendments to the rules governing mediator advertising and marketing practices.  The court's opinion described the changes to Rule 10.610 of the Florida Rules for Certified and Court Appointed Mediators:  "Subdivision (a) incorporates text from the current rule with only minor revisions.  This subdivision generally precludes the use of any false or misleading marketing practices.  Subdivision (b) prohibits a mediator from engaging in any marketing practice that identifies the mediator as 'Supreme Court Certified,' unless such practice also identifies one or more specific areas in which the mediator is certified.  Similarly, under subdivision (c), mediators are prohibited from engaging in a marketing practice that advertises the mediator as 'certified,' unless the mediator obtained such certification through successful completion of an established certification process and the advertisement clearly identifies the entity issuing the certification.  Subdivision (d) provides that advertising or marketing materials will be deemed 'misleading' if the mediator states or implies that prior adjudicative experience makes one a better or more-qualified mediator.  Subdivision (e), like subdivision (a), incorporates language taken without change from the existing rule.  It states that mediators shall be prohibited from engaging in marketing practices that promise clients specific results or outcomes.  Finally, subdivision (f) precludes a mediator from engaging in any other marketing practice that 'diminishes the importance of a party’s right to self-determination or the impartiality of the mediator, or that demeans the dignity of the mediation process or the judicial system'."

    The Court also explained its new Commentary to the rule:  "The Commentary explains that a former judge serving as a mediator must not use the prestige of the judicial office to advance his or her private interests.  The mediator may not appear in judicial robes in an advertisement for his or her mediation services; the mediator also may not use the title 'judge' with or without modifiers to the mediator’s name in any advertisement.  Indeed, the use of the title judge in any marketing practice, including, but not limited to, letterhead and business cards, is inappropriate.  However, an accurate representation of the mediator’s judicial experience in references to background and experience in bios and resumés would not be inappropriate."

    The revisions are effective immediately.  In re: Amendments to the Florida Rules for Certified and Court-Appointed Mediators, __ So.3d ___, 35 Fla.L.Weekly S191 (Fla., No. SC09-1384, No. 4/1/2010), 2010 WL 1235347.

Florida Supreme Court dramatically changes rules governing lawyers' websites.  [Added 11/20/09]

    In an opinion issued in response to the Florida Bar's motion for rehearing, the Florida Supreme Court amended the rules governing lawyer and law firm websites.  Formerly websites were considered "information upon request" and therefore were exempt from the lawyer advertising rules.  The new amendments dramatically change the regulation of lawyers' websites in Florida.

    Consistent with views expressed by members of the Court at oral argument and in the Court's prior opinion, the Court amended Rule 4-7.6 ("Computer-Accessed Communications) in several respects.  The most significant change was to make lawyer websites subject to all of the substantive lawyer advertising rules, with one exception (websites will not be required to be filed with the Bar for review).  The Court explained:  "[T]he purpose of rule 4-7.6 is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers’ abilities to provide information about themselves to the public.  In light of this purpose, the Court intends that websites be subject to all of the substantive advertising regulations applicable to other advertising media (except the filing requirement)."  (Footnote omitted.)

    The Court's action means that lawyer and law firm website may no longer include any references to past results or successes, testimonials, or statements characterizing the quality of the lawyer's services.  See Rule 4-7.2.

    Websites must still "disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law."  The rule, however, does not mandate where on the website this disclosure must appear; thus, it may appear on the home page or on an interior page or pages.

    The Court also amended portions of Rule 4-7.6 concerning direct email communications to prospective clients and Internet advertisements.

    Regarding email communications to prospective clients, the rule as amended "would clarify that email communications are subject to the rules that regulate advertisements by traditional mail."  Among other things, email communications must now:  (1) include a statement of the advertising lawyers' qualifications ("background, training and experience"): (2) inform the recipient if a lawyer other than the advertising lawyer will actually handle the matter; and (3) begin the subject line with the words "LEGAL ADVERTISEMENT."

    The final amendment clarifies that "[a]ll unsolicited computer-accessed communications concerning a lawyer's or law firm's services not addressed by other provisions of [Rule 4-7.6] are subject to the requirements of rule 4-7.2" (the general advertising rule).

    The amendments were to become effective on January 1, 2010.  In re: Amendments to the Rules Regulating The Florida Bar -- Rule 4-7.6, Computer Accessed Communications), 24 So.3d 172 (Fla. 2009) (revised opinion).

    NOTE:  In response to a request from the Florida Bar, the Florida Supreme Court ordered that the changes to the advertising rule governing lawyer and law firm websites (Rule 4-7.6) would become effective on July 1, 2010, rather than the originally announced date of January 1.

Florida Bar asks Florida Supreme Court to expressly exempt from advertising rules communications between lawyers, and lawyers’ communications with current and former clients.  [Added 4/30/09]

In January 2009 the Florida Bar filed a Report asking the Florida Supreme Court to amend Rule 4-7.1 to expressly exempt from the advertising rules lawyer-to-lawyer communication and lawyer-to-client communication. Proposed Rule 4-7.1(e) would state: "Subchapter 4-7 would not apply to communications between lawyers." Proposed Rule 4-7.1(g) would state: "Subchapter 4-7 would not apply to communications between a lawyer and that lawyer’s own current and former clients."]

The Bar asserted that these proposals were unnecessary, and backed up its position with survey of Florida Bar members. The Bar also stated that the U.S. Supreme Court’s lawyer advertising cases provided support for the proposals:

(Commercial speech, such as lawyer advertising, may constitutionally be regulated only to protect a substantial state interest and only where that interest is directly advanced by the regulation and the regulation is no more extensive than necessary to serve that interest. See Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 100 S.Ct. 2342 (1980).)

Federal suit challenging Florida Bar lawyer advertising rules ends with summary judgment granted for Bar.  [Added 4/8/09]

    A Jacksonville lawyer, William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., filed suit against the Florida Bar in the U.S. District Court for the Middle District of Florida.  The suit sought 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 suit sought to have a number of rules declared unconstitutional, including:  Florida Rule of Professional Conduct 4-7.1, (requires ads to provide only "useful, factual information presented in a nonsensational manner"); Rule 4-7.2(c)(1)(D) (prohibits statements that are "unsubstantiated in fact"); Rule 4-7.2(c)(1)(G) (prohibits statements that "promise results"); Rule 4-7.2(c)(1)(I) (prohibits any communication that "compares the lawyer's services with other lawyer's services"); Rule 4-7.2(c)(2) (prohibits statements "describing or characterizing the quality of the lawyer's services"); Rule 4-7.2(c)(3) (prohibits "visual and verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events" that are "manipulative, or likely to confuse the viewer"); and Rule 4-7.7(a)(1) (requiring filing of TV and radio ads prior to dissemination).

    The court granted the Bar's motion for summary judgment.

    The court concluded that the claims challenging the rules based on the current advertising campaign (using the slogan "Don't settle for less than you deserve" of Harrell and his law firm were moot.  The Bar's Board of Governors had ruled that the ads were permissible, and Rule 4-7.7(a)(2)(F) provides that "[a] finding of compliance by The Florida Bar shall be binding in a grievance proceeding, unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement."  The court further concluded that the plaintiffs lacked standing to challenge the constitutionality of any of the rules (except the pre-screening requirement).  Plaintiffs "failed to establish an injury-in-fact based on the proposed advertisements" and, in any event, failed to show that the alleged injury was "fairly traceable to the challenge[d] conduct."  Moreover, the plaintiffs did not provide any "evidence showing that their alleged injury likely would be redressed by granting the relief requested."  Plaintiff Public Citizen also failed to establish associational standing.

    Finally, the court concluded that plaintiffs did have standing to challenge the pre-screening requirement for TV and radio ads imposed by Rule 4-7.7(a).  "[A]s Plaintiffs have established the existence of subject matter jurisdiction with respect to their challenge to Rule 4-7.7(a), the Court must turn its attention there."  Plaintiffs contended that the rule was an unconstitutional prior restraint.   The Court disagreed, finding that the rule was not a prior restraint on speech and granted summary judgment for the Bar on this claim.

    For a complimentary copy of the court's order, email your request to Tim Chinaris at tchinaris@gmail.com.

Florida lawyer files federal suit challenging Bar advertising rules on testimonials, past results, and statements of quality.  [Added 4/2/09]

    A Florida lawyer has filed suit in the United States District Court for the Southern District of Florida seeking an injunction declaring several of Florida's lawyer advertising rules to be unconstitutional.  The suit grew out of the lawyer Joel Rothman's request to have clients post reviews of his services on a directory website, Avvo.  The Florida Bar had indicated that Mr. Rothman's proposed conduct would violate the advertising rules.

    The federal suit was filed as a result.  In the suit, Mr. Rothman seeks to have the following rules declared unconstitutional and have the Bar permanently enjoined from enforcing them:  Rule 4-7.2(c)(1)(F) (lawyer may not make statements in ads that contain any reference to past successes or results obtained); Rule 4-7.2(c)(1)(J) (lawyer may not make statements in ads that contain a testimonial); and Rule 4-7.2(c)(2) (lawyer shall not make statements describing or characterizing quality of lawyer’s services in ads).

For a complimentary copy of the complaint, email your request to Tim Chinaris at tchinaris@gmail.com.

Florida Supreme Court rejects Florida Bar's proposed changes to advertising rules governing lawyers' websites.  [Added 3/2/09]

    In February 2008 the Florida Bar petitioned the Florida Supreme Court to amend the rules regulating lawyers' websites.    Changes proposed by the Bar's to current Rule 4-7.6 included:

• 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 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.

    In an opinion joined by 5 of the 7 justices, the Court rejected the Bar's proposed amendments to Rule 4-7.6.

    The Court observed that the Bar's proposals sought to establish an "intermediate" regulatory position "between full application of all lawyer advertising rules and no regulation of websites under the lawyer advertising rules" by requiring the homepage to comply with all substantive advertising regulations while the interior pages were essentially treated as information provided to prospective clients upon request.  The Court disagreed:  "In contrast to the Bar’s arguments, we find that the proposed amendments are not sufficient to make material behind the homepage fall under the concept of information 'upon request' (which is exempted from regulation by subchapter 4-7, pursuant to rule 4-7.1(f)).  We recognize, however, that sufficient changes could be made to the rules regulating websites to make pages behind the homepage constitute material 'upon request.'  For example, a website could require users to complete two steps on webpages before they could access result or testimonial information.  First, a user could be required to complete a 'Request' page with their name, address, and phone number (all required fields).  Second, a disclaimer page could appear with the bottom of the page requiring a click on a button to indicate that the user had read the disclaimer (and an option for the user to discontinue the request for information).  Only after the user navigated through these two pages would the user be able to obtain the additional information.  This process would make obtaining information from a website similar to obtaining information 'upon request' from a lawyer, when a potential client picks up a phone and calls a lawyer to ask for information, and then is mailed a DVD or brochure by the lawyer with the requested information."

    The Court also responded to the Bar's concerns about the "significant difficulties in regulating websites" due to considerations such as "the fact that websites are not static" and the fact that websites "can present voluminous amounts of information, making the Bar's review of that information an overwhelming task."  The Court recommended what it viewed as a solution:  "[W]e we suggest that the Bar consider requiring attorneys to certify their compliance with the computer-accessed communications rules.  This required certification could be included on Bar members’ annual dues statements, similar to the required certification of compliance with the trust accounting rules.  See R. Regulating Fla. Bar 5-1.2(c)(5) (lawyers shall annually file with the Bar a trust accounting certificate showing compliance with the trust accounting rules).  If the Bar’s general investigations of websites reveal an attorney whose website does not comply with the advertising rules, the Bar could then proceed with a disciplinary investigation of the attorney, in a manner similar to when the Bar discovers violations of the trust accounting rules."

    The Court also rejected the Bar's proposal to eliminate the current requirement that websites disclose all jurisdictions where the lawyer is licensed to practice.  The Court stated that "the existing requirement in rule 4-7.6 is necessary to protect members of the public who might find an attorney through computer-accessed advertising, and the requirement does not unduly burden the advertising attorney.  Because a person can be located almost anywhere in the world when she finds the webpage of an advertising attorney, the rules should continue to require the attorney’s homepage to clearly state the jurisdictions in which the attorney is licensed to practice."

    Finally, the majority opinion agreed with the concurring and dissenting opinions that the use of testimonials "should be further considered by The Florida Bar" and, by separate letter, referred a request to the Bar to "study and define the term 'testimonials'."

    Justice Pariente, joined by Justice Labarga, authored a concurring opinion in which she commented that "lawyer advertising has changed the face of the legal profession and that change has not been a positive one."  She agreed with the majority's suggestion that the Bar fashion a rule that would require anyone seeking material beyond the homepage "must complete at least two steps (or two clicks of the mouse) until information appears that would be deemed the equivalent of 'information upon request'."  She also expressed the view that the use of testimonials could be "troubling" and have a "potential for abuse and . . . for further denigrating the justice system and this profession in the minds of the public."

    Justice Canady wrote a concurring opinion in which he also questioned the use of testimonials, as well as statements regarding the use of past results.  He pointed out that "[t]he provisions of rule 4-7.2(c)(1) suggest that testimonials and statements regarding results obtained may by their very nature run afoul of the general prohibition in rule 4-8.4(c) of 'dishonesty, fraud, deceit, or misrepresentation,' and thus would not be permissible even as information provided at the request of a prospective client."

    Chief Justice Quince concurred in part and dissented in part.  "I concur in the majority’s decision to not adopt the proposed amendments.  However, I disagree with that portion of the opinion that suggest that if a user has to navigate at least two pages that makes the rest of the website 'upon request' and therefore the rest of the website would not be subject to regulation by the Bar.  . . .  It seems incongruous to me that we are considering a loosening of the advertisement rules and the allowance of more self-lauding statements, i.e., past results and testimonials, in a forum that the Bar admits it cannot adequately review and which changes frequently.  I would therefore apply the advertising rules to websites."  In re: Amendments to the Rules Regulating The Florida Bar -- Rule 4-7.6, Computer Accessed Communications, __ So.3d ___, 34 Fla.L.Weekly S261 (Fla., No. SC08-1181, 2/27/09), 2009 WL 485105.  NOTE:  The Court's original opinion was withdrawn on rehearing and replaced on 11/29/2009.

Plaintiffs move for summary judgment in federal court challenge to various Florida Bar lawyer advertising regulations.  [Added 9/28/08]

    Plaintiffs William Harrell, his law firm Harrell & Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., have moved for summary judgment in their federal court suit challenging various Florida Bar lawyer advertising regulations.  Click here to view the motion and supporting memorandum.

    The plaintiffs 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.  Click here to view the complaint.  In its order denying the Bar's motion to dismiss, 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."

See Harrell v. The Florida Bar (M.D.Fla., No. 3:08-cv-15-J-33TEM, 2/29/2008) (not reported), 2008 WL 596086.

Federal court suit attacking Florida lawyer advertising rules survives challenges based on standing and abstention.  [Added 3/21/08]  --  Click here to see the complaint.  Click here to see the order denying the Bar's motion to dismiss.  Harrell v. The Florida Bar (M.D.Fla., No. 3:08-cv-15-J-33TEM, 2/29/2008) (not reported), 2008 WL 596086.

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] --  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, (N.D.N.Y., No. 5:07-CV-117 (FJS/GHL), 7/23/2007) (not reported), 2007 WL 2120024.

Nevada amends lawyer advertising rules to require, inter alia, that ads be submitted to State Bar for review.  [Added 5/8/07] -- See Nevada Rule of Professional Conduct 7.2A.

Florida Bar Board of Governors approves rule to allow past results, testimonials, and characterizations of quality in lawyers' websites, with disclaimer.  [Added 3/30/07].  Click here to see text (in legislative format) of revised rule as approved by Board of Governors.

Federal Trade Commission staff criticizes Florida's proposed regulations governing lawyer websites and other computer-accessed communications.  [Added 3/24/07] -- 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, 971 So.2d 763 (Fla. 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).