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Some of Florida's lawyer advertising rules held unconstitutional by federal court. [Added 10/5/11] On remand from the Eleventh Circuit (see Harrell v. Florida Bar, 608 F.3d 1241 (11th Cir. 2010), the U.S. District Court for the Middle District of Florida held some of Florida's lawyer advertising rules to be unconstitutional and permanently enjoined the Bar from enforcing them. The case was decided on motions for summary judgment filed by Plaintiffs (Jacksonville lawyer William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc.) and by the Bar. Plaintiffs argued that 5 of the Bar's rules governing lawyer advertising are impermissibly vague and thus facially invalid under the Due Process Clause to the Fourteenth Amendment. 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 manipulative); Rule 4-7.5(b)(1)(A) (prohibits TV and radio ads containing any feature that is manipulative); 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'). Plaintiffs further contended that two rules were unconstitutional as applied. Those 2 rules are: Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); and Rule 4-7.5(b)(1)(C) (prohibits TV and radio ads containing 'any background sound other than instrumental music'). As explained more fully below, the court held: -- Rule 4-7.2(c)(1)(G) (statements promising results) and Rule 4-7.2(c)(2) (statements characterizing quality of services) are constitutional; -- Rule 4-7.2(c)(3) (manipulative descriptions or portrayals) and Rule 4-7.5(b)(1)(A) (manipulative features in TV and radio ads) are unconstitutionally vague on their face; -- the Comment to Rule 4-7.1 (ads should provide only useful, factual information) is unconstitutionally vague on its face; -- Rule 4-7.5(b)(1)(C) (prohibiting TV and radio ads with any background sound other than instrumental music) was unconstitutional as applied to Plaintiffs; and -- Rule 4-7.2(c)(2) (prohibiting use of statement "Don't Settle for Less Than You Deserve") was unconstitutional as applied to Plaintiffs. The court declined the Bar's implied invitation to refrain from ruling on the case until the Florida Supreme Court acts on the Bar's proposed revisions to the advertising rules (what the court called the "Revised Rules"). The Revised Rules were submitted to the Supreme Court on July 5, 2011. (Click here to see sunEthics.com summary of the Revised Rules.) The Revised Rules, if adopted by the Florida Supreme Court, will replace the prohibition on "manipulative" techniques and the blanket prohibition on background sounds with a rule that prohibits "unduly manipulative" sounds, images, or dramatizations. Facial challenge to Rule 4-7.2(c)(1)(G) (statements promising results) and Rule 4-7.2(c)(2) (statements characterizing quality of services). The court upheld these rules. In order to sustain a facial challenge, Plaintiffs were required to prove that "'the enactment is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’' See [Village of] Hoffman Estates [v. Flipside, Hoffman Estates, Inc.], 455 U.S. [489] at 495 n.7 [(1982)] (internal citation omitted) (quoting Smith v. Goguen, 415 U.S. 566, 578 (1974)) . . . As such, [Plaintiffs] must show that the challenged provisions simply have 'no core.' Hoffman Estates, 455 U.S. at 495 n.7 (internal quotation omitted)." The Bar's broad interpretation of the challenged rules was not fatal. Similarly, the fact that the Bar's application of these rules to various ads "often appears to turn on fine, and at times almost imperceptible, distinctions" did not render them unconstitutionally vague. The court noted that over a 14-year period the Bar's Ethics Department render 52,741 advisory opinions on ads and "only a handful" were cited by Plaintiffs as examples of arguably inconsistent or conflicting decisions. Thus, "in most cases a Rules application to a particular advertisement is plain." (Footnote omitted.) The availability of advisory opinions "bolstered" the constitutionality of the rules by allowing bar members to get assistance "where the marginal applications of the Rules may otherwise be unclear." Consequently, the court concluded that "[b]ecause [Plaintiffs have] failed to demonstrate that the 'promises results' and 'quality of services' Rules have 'no core,' Hoffman Estates, 455 U.S. at 495 n.7, the Court finds that Bar Rules 4-7.2(c)(2) and 4-7.2(c)(1)(G) are not unconstitutionally vague." Facial challenge to Rule 4-7.2(c)(3) (manipulative descriptions or portrayals) and Rule 4-7.5(b)(1)(A) (manipulative features in TV and radio ads). The court struck down these rules. The rules do not define "manipulative" or include a standard by which to assess whether an ad is impermissibly manipulative. This means that the rules fail to give bar members adequate notice of what is prohibited and gives the Bar "unbridled discretion" in deciding which ads it will prohibit as manipulative. The court rejected the Bar's attempt to tie the meaning of "manipulative" to securities statutes. Furthermore, "unlike the 'promises results' and 'quality of services' Rules, the availability of advisory opinions does not ameliorate the vagueness problem with 'manipulative.' Because the 'manipulative' Rules lack any 'core' meaning, the availability of 'necessarily arbitrary opinions,' see Harrell [], 608 F.3d at 1264 n.8, does not render the Rules any less vague or restrain the Bar’s discretion in applying them. Indeed, the Bar’s enforcement of these Rules demonstrates their arbitrary application. Although the Bar attempts to explain the inconsistent applications, its explanations do not reveal any particular standard or definition that applies, but instead amount to case-by-case rationalizations without any connection to the language of the Rules." Facial challenge to the Comment to Rule 4-7.1 (ads should provide only useful, factual information). The court struck down this provision. Again, the rules do not define "useful" or set forth standards for determining whether what is or is not "useful" in an ad. "Because lawyers of common intelligence could easily differ on what constitutes 'useful' information in an attorney advertisement, this provision fails to provide any notice, much less 'fair notice' of what is prohibited to the members of the Florida Bar. See [International Society for Krishna Consciousness of Atlanta v.] Eaves, 601 F.2d [809] at 830-31 [5th Cir. 1979)]." As-applied challenge to Rule 4-7.2(c)(2) (prohibiting use of statement "Don't Settle for Less Than You Deserve"). The court held that application of this rule to prohibit Plaintiffs from using the slogan "Don't Settle for Less Than You Deserve" was unconstitutional under the facts of the case. (Because this was an as-applied challenge, the court did not have before it the issue of whether the Bar constitutionally could prohibit all quality of service statements.) The Bar failed to satisfy the Central Hudson test (see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)). The Bar presented "no evidence, anecdotal or otherwise, that the phrase has misled the public or tarnished the reputation of the legal profession in the public’s eyes." (Emphasis by court.) The court rejected the Bar's attempt to cite to data purportedly showing generally that TV advertising lowers the public's respect for the legal system. As-applied challenge to Rule 4-7.5(b)(1)(C) (prohibiting TV and radio ads with any background sound other than instrumental music). The court held that application of this rule as it would apply to Plaintiffs' proposed ads was unconstitutional. The court rejected the Bar's contention that this rule must be read in pari materia with Rule 4-7.2(c)(16), which prohibits sounds in ads that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener." Instead, the court stated that "the meaning of Rule 4-7.5(b)(1)(C) is plain – the Rule categorically bans all background sounds in television and radio advertisements except instrumental music." The Bar failed to satisfy the third prong of the Central Hudson test because it did not directly and materially advance the substantial governmental interests of preventing the public from being misled and preventing the erosion of public confidence in the judicial system. The Bar's reliance on a 1989 study of the effects of lawyer advertising on public opinion was unavailing, as it "falls far short of the type of 'concrete evidence' necessary to justify the Bar’s categorical restriction on background sounds. See Mason [v. Florida Bar], 208 F.3d [952] at 958 [(11th Cir. 2000)]." Harrell v. Florida Bar, ___ F.Supp.2d ___ (M.D.Fla., No. 3:08-cv-15-J-34 TEM, 9/30/2011). |
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