sunEthics

Florida Bar asks Florida Supreme Court to approve major changes to lawyer advertising rules.  [Added 7/6/11]

    On July 5, 2011, the Florida Bar filing a petition asking the Florida Supreme Court to approve a comprehensive overhaul of the rules governing lawyer advertising.  The proposed rules, including their numbering and arrangement, represent a substantial revision of the rules that have applied to lawyer advertising and solicitation in recent years.  Any changes to the rules must be approved by the Court.

     Click here to view the Bar's petition.  Click here to view the full text of the proposed rules.  Click here to see the proposed rules with the Bar's explanatory notes.

    A sunEthics.com summary of some of the significant features of the proposed rules appears below.

    The new rules and their titles are:  Rule 4-7.1 (Application of Rules); 4-7.2 (Required Content); 4-7.3 (Deceptive and Inherently Misleading Advertisements); 4-7.4 (Potentially Misleading Advertisements); 4-7.5 (Unduly Manipulative or Intrusive Advertisements); 4-7.6 (Presumptively Valid Content); 4-7.7 (Payment for Advertising and Promotion); 4-7.8 (Direct Contact with Prospective Clients); 4-7.9 (Evaluation of Advertisements); 4-7.10 (Exemptions From the Filing and Review Requirement); 4-7.11 (Firm Names and Letterhead); 4-7.12 (Lawyer Referral Services); and 4-7.13 (Lawyer Directory).

Proposed Rule 4-7.1 (Application of Rules).  The proposed rules apply to "all forms of communication in any print or electronic forum."  This includes "websites, social networking, and video sharing media."  Regarding websites of multistate law firms, the proposed Comment explains that the Florida advertising rules do not apply "to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida."

    The proposed rules apply to all lawyers, whether admitted in Florida or not, "who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents."  Regarding ads in "national media" (e.g., cable television), the proposed rules do not apply "if the disclaimer 'cases not accepted in Florida' is plainly noted in the advertisement."

Proposed Rule 4-7.2 (Required Content).  All ads must contain the name of  the lawyer, law firm, lawyer referral service, or lawyer directory responsible for the ad.  If the cases being advertised for will be referred to another lawyer or firm, the ad must so state.  Any required information must appear in each language used in the ad.  (These requirements are in the current rules.)

Proposed Rule 4-7.3 (Deceptive and Inherently Misleading Advertisements).  The proposed Rule defines deceptive or inherently misleading ads, and provides a non-exclusive list of deceptive or inherently misleading statements.  The list is significant primarily because of what the proposed rule would permit.

    References to past results are permitted if "objectively verifiable."  (The proposed Comment points out that the affected client must give informed consent, even where "some or all of the information a lawyer may wish to advertise is in the public record.")

    Comparisons or characterizations of the advertiser's "skills, experience, reputation or record" are permitted if "objectively verifiable."

    The current rule requiring all non-lawyer spokespersons to be identified as such in ads is replaced by a rule requiring a "prominently displayed" notice ("Not an employee or member of law firm") where the person's voice or image "creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee" of the advertiser.  Ads containing "dramatizations" of actual or fictitious events must contain a "prominently displayed" disclaimer, and a disclaimer must be "prominently displayed" when an actor "acting as a spokesperson" for the advertiser portrays someone "purporting to be engaged in a particular profession or occupation" (e.g., doctor, lawyer, police officer).

    For the first time in many years, the proposed rule generally allows the use of testimonials but does not permit testimonials:  "(A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results."  The proposed Comment defines "testimonial" as "a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation."

    Finally, ads may not contain an advertising lawyer's "judicial, executive or legislative branch title with or without modifiers."  (The proposed Comment clarifies that "an accurate representation of one’s judicial, executive, or legislative experience is permitted in reference to background and experience in bios, curriculum vitae and resumes.").

Proposed Rule 4-7.4 (Potentially Misleading Advertisements).  The proposed rules, for the first time, explicitly regulate "potentially misleading" ads.  The proposed Rule provides a non-exclusive list of potentially misleading ads that includes:

    -- Ads subject to "varying reasonable interpretations, 1 or more of which would be materially misleading when 474 considered in the relevant context;"

    -- Ads "that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;" and

    -- Ads with references to "membership in or recognition by an entity that purports to base such membership or organization 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 draws from "a reasonable cross-section of the legal community the entity purports to cover."

    The proposed Rule also provides that an ad may be rendered permissible through the inclusion of "information or statements that adequately clarify the potentially misleading issue."

Proposed Rule 4-7.5 (Unduly Manipulative or Intrusive Advertisements).  The proposed Rule prohibits ads that are "unduly manipulative or intrusive."  An ad is "unduly manipulative" if it:  (a) has features designed to "solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client;" (b) uses the voice of image of a "celebrity" (except a local announcer who regularly records ads and does not endorse the advertiser); or (c) "offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising" (except for discounted fees).

    Neither the proposed Rule nor its Comment attempt to define what would be considered "intrusive."

Proposed Rule 4-7.6 (Presumptively Valid Content).  The proposed Rules lists certain information that is "presumed not to violate" the advertising rules.  The items listed are almost identical that those contained in the current rules.  One notable addition allows the inclusion of membership in and positions held in any state bar (the current rule is limited to Florida Bar membership and positions held).

Proposed Rule 4-7.7 (Payment for Advertising and Promotion).  The proposed Rule continues the prohibitions against (a) a lawyer paying the costs of ads by a lawyer not in the same firm (the Comment notes that firms may advertise jointly if all required information is included) and (b) a lawyer giving anything of value in exchange for a recommendation of the lawyer's services.  A new prohibition is added as subdivision (c):  "A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer."

Proposed Rule 4-7.8 (Direct Contact with Prospective Clients).  The proposed Rule continues to prohibit most in-person solicitation. 

    The rules governing direct mail (including email) communication with prospective clients would be extended to all written communications seeking professional employment (not just "unsolicited" ones as provided for in the current rule).  Most of the specific requirements for direct mail communications remain unchanged.  The most significant change is that the word "Advertisement" must appear on each page of the communication (instead of only the first page). 

Proposed Rule 4-7.9 (Evaluation of Advertisements).  The proposed Rule requires that all ads (except websites) be filed with the Bar 20 days in advance of their first use. (The current rule requires pre-filing of only television and radio ads.)  The proposed Rule prohibits the filing of "an entire website" for review.  A lawyer, however, "may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website," even though these are not required to be filed.

    The current rule mandates that the Bar's finding that an ad is in compliance is binding on the Bar in a grievance proceeding (absent a misrepresentation not apparent from the face of the ad).  Significantly, the proposed Rule would allow the Bar to retract a finding of compliance at its pleasure, even when the underlying rules have not changed.  Continued dissemination of the no-longer-approved ad would subject the advertiser to discipline.

    The proposed rule creates a limited safe harbor "take-down" period for websites.  A lawyer is subject to discipline for a non-complying website "only after 15 days have elapsed since the date" that the Bar sent a notice of noncompliance to the lawyer's official Bar address.

    The ad review fees remain at $150 per timely-filed ad and $250 per late-filed ad.

Proposed Rule 4-7.10 (Exemptions From the Filing and Review Requirement).  The exemptions from the filing-and-review requirement remain substantially unchanged under the proposed Rule.  It specifies that "a written or recorded communication requested by a prospective client" is exempt.  Although the communication itself is exempt from filing, the content of any such requested communication is subject to the advertising rules. (This is a change from the current rule, which provides that the ad rules do not apply to requested information.)

    Additionally, the proposed rule provides that websites are not required to be filed for review.

Proposed Rule 4-7.11 (Firm Names and Letterhead).  The proposed Rule leaves the standards governing firm names and letterhead unchanged.  The proposed Comment adds that a sole practitioner's use of "and Associates," "Group," or "Team" is impermissible because it "implies that more than one lawyer is employed in the advertised firm and is therefore misleading."

Proposed Rule 4-7.12 (Lawyer Referral Services).  The proposed imposes a new requirement on the operation and advertising of lawyer referral services by mandating that all lawyer referral service ads affirmatively state "that lawyers who accept referrals from it pay to participate in the lawyer referral service."  (This is in addition to the affirmative "lawyer referral service" disclosure that currently is required.)

Proposed Rule 4-7.13 (Lawyer Directory).  The proposed Rule recognizes, for the first time, a "lawyer directory."  This is defined as:  "[A]ny person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers."  Traditional telephone directories, and voluntary bar associations that list members on a website or in a publication, do not come within the definition.

    Many of the regulations that apply to lawyer referral service ads also apply to "lawyer directories;" notable exceptions are:  there is no requirement for lawyers listed in a "lawyer directory" to be covered by malpractice insurance; and there is no requirement that the "lawyer directory" provide the Florida Bar with a list of participating lawyers.

    Watch sunEthics.com for updates (rule changes filed with the Florida Supreme Court are tracked on our "Proposed Changes to Florida Bar Rules" page).

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