Federal Suit Challenges Florida Bar Rules That Restrict Statements in Websites, Blogs

The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...

By Joan C. Rogers  

Dec. 24 -- A Florida law firm Dec. 11 filed suit in the U.S. District Court for the Northern District of Florida, alleging that the Florida Bar's rules governing lawyer advertising are unconstitutionally restrictive and vague as applied to statements in law firm websites, blogs and social media (Searcy v. Florida Bar, N.D. Fla., No. 4:13-cv-00664, filed 12/11/13).

The complaint broadly asserts that the bar's advertising rules make it effectively impossible for Florida lawyers to write articles on blogs, publish results obtained for clients or participate in social media sites such as LinkedIn. By way of specific relief, the complaint asks the federal court to strike down two particular rules--one that requires lawyers' advertisements to be “objectively verifiable” and another that restricts specialization claims.

In a related development two days after the complaint was filed, the Florida Bar's Board of Governors Dec. 13 approved new “Guidelines for Advertising Past Results.” The guidelines spell out in much detail what the bar expects lawyers to say and not say when advertising results they have obtained for their clients.

First Case Challenging New Rules.

Effective May 1, 2013, the Florida Supreme Court adopted a comprehensive new set of lawyer advertising rules that apply to all forms of advertising, including websites. Before the overhaul, Florida's lawyer advertising rules did not treat websites as advertising. The highly detailed new rules forbid ads that are “deceptive or inherently misleading,” “potentially misleading” or “unduly manipulative or intrusive.” Advertisements may contain “objectively verifiable” past results; “objectively verifiable” characterizations of skill, experience, reputation or record; and client testimonials, subject to certain restrictions and disclaimers. See 29 Law. Man. Prof. Conduct 97.

“This is the first case to challenge Florida's amended rules,” according to Gregory A. Beck of Gupta Beck PLLC, Washington, D.C., one of the attorneys for the plaintiffs. In recent years, federal courts have struck down lawyer advertising rules in New York, Louisiana and Florida, Beck noted.

In comments to Bloomberg BNA, Beck pointed out that Florida has always had some of the most restrictive lawyer advertising rules in the nation. “By extending the rules to lawyer websites, blogs, and social media pages, the amendments make the rules more restrictive than ever,” he said.

The bar's application of the rules makes it impossible, Beck said, for lawyers to state their areas of practice on LinkedIn or for former clients to post their opinions about a lawyer's services. “That kind of restriction deprives the public of useful information while doing nothing to prevent truly misleading ads,” he said.

“Although the amendments purport to allow some new forms of advertising, such as past results and testimonials, the Bar's interpretation of the amended rules makes it practically impossible to take advantage of these changes,” Beck said.

Beck noted that many firms are in the process of trying to bring their websites into compliance with the amended rules; however, “it is going to be a long and difficult process” because websites are so voluminous, he said.

“Websites are not required to be filed for review, and the Bar has only recently begun notifying lawyers of noncomplying websites, so many lawyers in Florida probably don't yet realize that their sites may violate the rules,” Beck said.

Law Firm Sues Bar.

The complaint challenging the new rules was filed by the law firm of Searcy Denney Scarola Barnhart & Shipley PA and its name partners. The defendants are the Florida Bar, two bar officials and the chief disciplinary counsel of the bar's Tallahassee and Fort Lauderdale branches.

Many lawyers in Florida probably don't realize that their websites may violate Florida's amended advertising rules.

Gregory A. Beck
Gupta Beck PLLC

The complaint asserts that after the new rules were adopted, Searcy Denney began reviewing the thousands of pages on its websites in an effort to comply with the rules, but it was unable to determine which statements would violate the “objectively verifiable” requirement. The firm requested an advisory opinion and chose a sample of 13 individual web pages to submit to the bar for review.

According to the complaint, the bar advised that Searcy Denney's website and blog are not “objectively verifiable” because they express opinions on issues of public concern, such as statements that the days “when we could trust big corporations … are over” and that “[g]overnment regulation of … consumer safety has been lackadaisical at best.”

The plaintiffs assert that the bar has interpreted the phrase “inherently misleading” to include an implicit objective-verifiability requirement, and thus the bar demands that all lawyer communications must be objectively verifiable. The bar's stance that all statements must be “objectively verifiable” violates the First Amendment and is so vague that it leaves lawyers in the dark about what is prohibited, the plaintiffs contend.

The complaint also says the bar found “garden-variety statements” about Searcy Denney's services and past cases to be inherently misleading because the statements do not include all facts the bar deems pertinent about each case. At the same time, the bar has refused the firm's requests to clarify what facts the bar considers pertinent, the plaintiffs allege.

“Nothing about the statements singled out by the Bar distinguishes them from statements that thousands of other lawyers routinely include in their advertising--statements that nobody could reasonably claim to be misleading,” the complaint states.

The complaint also says the bar concluded that the firm's pages on LinkedIn violate several provisions in the rules because, among other things, LinkedIn automatically lists the firm's “specialties” and includes an unsolicited review posted by a former client.

The complaint asks the court to strike down Florida Rule of Professional Conduct 4-7.13's requirement that lawyer advertisements be “objectively verifiable,” as well as the prohibition in Rule 4-7.14 on stating or implying that a lawyer specializes or has expertise in an area of law. The complaint also requests “all other appropriate relief.”

Predictability Problem.

In comments to Bloomberg BNA, Professor Timothy P. Chinaris of Faulkner University, Jones School of Law, said he was not surprised that the suit was filed. “It is growing increasingly difficult to predict how the Bar will rule on a given ad,” he said.

Many advertisers are becoming frustrated with the bar's actions regarding their ads, Chinaris said, noting that predictability is vitally important when planning advertising campaigns. “The problem is compounded by the new rule that allows the Bar to approve an ad and then change its mind later and arbitrarily retract that approval,” he said, referring to Rule 4-7.19(f)(4).

“Advertisers invest a great deal of lead time and money in developing advertising that fits within the Bar rules, and they should be able to rely on an approval letter from the Bar. That is no longer possible,” Chinaris said.

Investigations, but No Discipline So Far.

Francine A. Walker, Tallahassee, who is the Florida Bar's director of public information and bar services, said the bar could not comment on pending litigation.

In response to questions from Bloomberg BNA, Walker said the bar has opened some disciplinary investigations on a number of law firm websites and continues to do so when it receives a complaint and the website does not comply with the lawyer advertising rules.

“Most of these investigations have involved failure of the law firms to include required disclaimers on their websites so that their listings of judgments or verdicts obtained is not misleading,” Walker said.

“Generally, the firms are required to add a disclaimer stating that each case is different and the results do not imply that new clients will obtain the same or similar results, Walker said. “Also, the law firms are advised to state whether the numbers cited on their website are net or gross figures,” she said. These disclaimers cannot be hidden or so small as to be illegible on the website, she added.

“There has not been any discipline so far for any of the attorneys who have been investigated for website violations,” Walker said.

Guidelines on Advertising Results.

The bar's detailed guidelines on advertising past results indicate that:

  • The bar generally will not approve references to past results in indoor and outdoor displays and in radio and television advertisements;
  • When an advertisement includes a dollar amount that a specific client has received, the dollar amount must be the net amount after deductions for attorneys' fees and litigation-related expenses;
  • When an advertisement includes a dollar amount not tied to a specific client, an advertisement of the gross amount must include the disclaimer “Before deduction of attorneys' fees and expenses.”
  • Specific standards must be followed for advertising the amount of structured settlements and aggregate past results;
  • An advertisement of past results must disclose information necessary to prevent it from being misleading; and
  • Results should not be characterized as wins unless that characterization is not debatable.

Regarding these guidelines, Chinaris said “They appear to be an effort by the Bar to indirectly repeal the Supreme Court's adoption of rules allowing the advertising of past results.”

The bar's stance hurts not only advertisers but the public, he said, because surveys consistently show prospective clients want to know about a lawyer's experience and results. “These new 'Guidelines' will make it harder for prospective clients to obtain this valuable information,” he said.

The plaintiffs are represented by Richard Burton Bush of Bush & Augspurger, PA, Tallahassee, Fla., and Gregory A. Beck, Deepak Gupta and Brian Wolfman of Gupta Beck PLLC, Washington, D.C.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

Full text of the complaint is at http://www.bloomberglaw.com/public/document/SEARCY_etal_v_FLORIDA_BAR_etal_Docket_No_413cv00664_ND_Fla_Dec_11.

A link to the Florida Bar's Guidelines for Advertising Past Results is provided on the bar's “Advertising Regulation” web page athttp://www.floridabar.org/tfb/TFBLawReg.nsf/E0F40AF2C23904C785256709006A3713/F0F34CEAE87853CC85256B2F006C8848?OpenDocument.

The ABA/BNA Lawyers’ Manual on Professional Conductis a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2014, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.