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IN THE SUPREME COURT OF FLORIDA

 IN RE: AMENDMENTS TO THE                                   CASE NO. SC10-1014

RULES REGULATING THE FLORIDA

BAR – RULE 4-7.6, COMPUTER

ACCESSED COMMUNICATIONS

_________________________________/

COMMENTS OF FLORIDA BAR MEMBER TIMOTHY P. CHINARIS

           COMES NOW Florida Bar member Timothy P. Chinaris, who files the following comments in opposition to The Florida Bar’s petition to amend Rule 4-7.6 of the Rules Regulating The Florida Bar, regarding computer-accessed communications, and states:

          1.     The undersigned is a member in good standing of The Florida Bar.

2.     The undersigned served as Ethics Director of The Florida Bar from 1989 to 1997, is a member and past chair of the Bar’s Professional Ethics Committee, teaches legal ethics at an ABA-approved law school, and consults with and represents lawyers on advertising matters.  These comments are those of the undersigned individually.

          3.     These comments are filed in response to the Notice published in the May 1, 2010, issue of the Florida Bar News. 

Summary of Comments

          4.     The undersigned respectfully requests that the Court decline to approve the proposed rule for the following reasons:  (1) adopting the proposed click-through disclaimer procedure would unnecessarily restrict the public’s access to useful information and make marketing abuses by lawyers harder to detect; (2) the Bar has not satisfied its burden of producing evidence that justifies the proposed restrictions; (3) because of the dynamic nature of technology any restrictions of this type should be developed through the advisory opinion process rather than placed in a disciplinary rule; and (4) the proposed rule does not define operative terms and thus fails to give lawyers adequate notice of what is permitted or prohibited.  These reasons are discussed below.

The proposed click-through disclaimer procedure would unnecessarily restrict the public’s access to useful information and make marketing abuses by lawyers harder to detect.

 5.     Prospective clients prefer to find lawyers through personal recommendations from others.  A survey commissioned for the American Bar Association found that this method was four times as popular as the second-place method.  See American Bar Association Commission on Advertising, Lawyer Advertising at the Crossroads:  Professional Policy Considerations (American Bar Association 1995), pp. 95-96.  The personal recommendation method of finding a lawyer likely is preferred because it allows the prospective client to hear a testimonial from someone who has used that lawyer and to obtain information about the results that the lawyer achieved.

6.     The public’s access to this useful, highly desired information about lawyers should be facilitated by rules that permit lawyers to place truthful information about past results and truthful testimonials on their websites.  Although appropriate disclaimers may be called for to ensure that particular information is not misleading, the proposed rule goes too far in its establishment of a restrictive click-through disclaimer scheme.

7.     The cumbersome click-through disclaimer process in the proposed rule contrasts dramatically with how prospective clients actually use the Internet when looking for a lawyer.  People typically look at websites from the privacy of their home or office, where they can thoughtfully review and consider the information.  The proposed rule would require a viewer who wants to see truthful, useful information about a lawyer to provide one or more affirmative acknowledgements by clicking to “agree” with certain statements.  This will have the practical effect of discouraging viewers from seeking the information.  Many persons choose not to click on statements on unfamiliar websites due to concerns about viruses or other computer problems.  Some are concerned that by clicking to agree they will expose their private information.  The Court should not adopt a rule that requires these steps in order for a prospective client to see truthful, non-misleading information about a lawyer.

8.     Communications made by a lawyer to a prospective client at the prospective client’s request fall completely outside the scope of the lawyer advertising rules.  Rule 4-7.1(f), Rules Regulating The Florida Bar.  This means that a lawyer who is telephoned, emailed, or visited by a prospective client ethically may provide that person with information about the lawyer’s past results, with testimonials, and with descriptions or characterizations of the quality of the lawyer’s services.  In doing so the lawyer is subject only to the requirements of Rule 4-8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

9.     These private communications are not exposed to view by the Florida Bar or by competing lawyers, who have an incentive to review statements made by their competitors for accuracy and completeness.  In the event of a later complaint by a client who claims that he or she was misled or misinformed in these private communications, the Bar faces a very real difficulty in proving by clear and convincing evidence that misconduct occurred.

10.     Allowing lawyers to post on their websites truthful past results and testimonials, without hiding them behind a restrictive, burdensome click-through screen, would place this useful consumer information in full view of the public, the Bar, and competing lawyers.  Advertising lawyers would have a strong incentive to ensure that the information posted about themselves and their law firms is truthful, non-misleading, and complete.

11.     Prospective clients would be far better served if they had access to this information in the privacy of their own homes or offices rather than having to initiate direct contact with a lawyer to get the information that they want.  The legal profession and the public would benefit because it would be easier to identify and discipline lawyers who provide false or misleading information.  Consequently, this Court should reject the proposed rule. 

The Bar has not satisfied its burden of producing evidence justifying the proposed restrictions.

 12.     The proposed rule imposes significant restrictions on truthful, non-misleading commercial speech by lawyers.  In order to constitutionally impose these restrictions, the Bar must satisfy the requirements established by the United States Supreme Court in Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980).  The Bar must show that there is a substantial state interest for the restrictions, that the restrictions directly and materially advance that interest, and that the restrictions are narrowly tailored.

13.     The party seeking to restrict commercial speech – the Bar – bears the burden of justifying the restrictions.  See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 (1983).  See also Mason v. Florida Bar, 208 F.3d 952, 958 (11^th Cir. 2000) (Florida Bar opinion requiring disclaimer in lawyer’s ad struck down as unconstitutional; Bar failed to carry its burden of proof).

14.     The Bar has produced no evidence that prospective clients are misled by the use of truthful past results or testimonials accompanied by appropriate disclaimers.  Even if such evidence existed, the proposed rule is not narrowly tailored to accomplish its objectives.  Consequently, the proposed restrictions run afoul of the U.S. Constitution and should be rejected by this Court. 

Because of the dynamic nature of technology any restrictions of this type should be developed through the advisory opinion process rather than placed in a disciplinary rule.

           15.     The level of procedural detail in the proposed rule is undesirable in a Rule of Professional Conduct.  The Rules are meant to set the governing ethical standards for lawyers, not to minutely prescribe how they should meet those standards.  The Rules of Professional Conduct are “rules of reason.”  Preamble, Rules of Professional Conduct.

16.     Most Rules of Professional Conduct set broad standards without mandating precisely how those standards are to be carried out.  For example, Rule 4-1.9 requires that a lawyer obtain the informed consent of a former client before undertaking a new representation that is materially adverse to the former client’s interests.  Notably, the rule does not set out a consent form that must be used or specify what the lawyer must say in obtaining the informed consent.  Similarly, Rule 4-1.6 requires that a lawyer obtain a client’s informed consent before revealing confidential information relating to the representation.  The rule, however, does not detail exactly what the lawyer and client must discuss in the process of securing the informed consent.

17.     The level of detail contained in the proposed rule is especially inappropriate in light of the subject matter of the rule, which is the advertising of legal services through the use of technology.  Technology will continue to change and develop, as will its uses in the legal profession.  If the proposed rule is adopted it is almost certain to become outdated very quickly.  Yet, until the rule is changed or repealed lawyers would still be subject to it and would face disciplinary penalties for failure to comply.

18.     Even if the Court approves of the concepts embodied in the proposed rule, it would be more appropriate to have those concepts applied through the advisory opinion process that is available to Bar members.  See Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation (“the Procedures”).  The proposed regulations can be considered simply an application or interpretation of the “information upon request” exception from the advertising rules that is expressed in Rule 4-7.1(f).  Additionally, the advisory opinion process provides greater flexibility and usually offers a quicker response time than the formal rule-making process used in this Court.

19.     Currently the Procedures do not provide for Supreme Court review of advisory opinions adopted by the Bar.  It is submitted that the Court should consider amending the Procedures to provide for Court review.  Because advisory opinions regarding advertising practices have potentially anti-competitive implications, such Court oversight would be desirable under the state action doctrine.  See, e.g., Parker v. Brown, 317 U.S. 341 (1943). 

The proposed rule does not define operative terms and thus fails to give lawyers adequate notice of what is permitted or prohibited.

 20.     The proposed rule refers to “past results” and “testimonials” but does not define these terms.  As a result, the rule does not provide lawyers with fair notice of what is permitted or prohibited.

21.     The Court itself has indicated uncertainty over what constitutes a “testimonial.”  See In re Amendment to the Rules Regulating The Florida Bar – Rule 4-7.6, Computer Accessed Communications, 24 So.3d 172, 174, n. 4 (Fla. 2009) (Court requested that Bar “study and define ‘testimonial’ and report back to the Court”).

22.     The meaning of “past results” also is unclear.  Lawyers have been permitted to refer to their past “experience” in their ads.  When lawyers permissibly state in an ad that they have handled hundreds of cases, a prospective client undoubtedly will conclude that the lawyer has won some of those cases.  There can be no other reasonable conclusion.  That mention of past “results,” however, is permitted.  Other references to past results are prohibited.  The proposed rule provides no guidance to help lawyers distinguish between the two.

23.     If the proposed rule is adopted, violators will be subject to discipline.  In order to bring disciplinary charges against a lawyer in a manner that satisfies due process requirements, the lawyer must be given fair notice of permissible conduct.  The proposed rule does not provide that notice and should be rejected by this Court.

Conclusion

          24.     For the foregoing reasons, this Court should decline to adopt the Bar’s proposed amendments to Rule 4-7.6, Rules Regulating The Florida Bar, concerning computer-accessed communications.

                                                          Respectfully submitted,

                                                          ______________________________

                                                          TIMOTHY P. CHINARIS

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