Key Holding: Declares several Florida lawyer advertising rules unconstitutional, either on their face or as applied; upholds two rules against facial vagueness challenge.
Potential Impact: Will likely influence the Florida Supreme Court in its pending decision on whether to adopt other changes to ad rules that the bar has recommended.
By Joan C. Rogers
Florida bar rules that prohibit “manipulative” features in lawyer advertising and limit the content of lawyers' ads to “useful” information are void for vagueness, but rules that direct lawyers not to promise results or make quality claims are not inherently invalid, the U.S. District Court for the Middle District of Florida decided Sept. 30 (Harrell v. Florida Bar, M.D. Fla., No. 3:08-cv-15-J-34TEM, 9/30/11, on remand of 26 Law. Man. Prof. Conduct 390).
In other aspects of the decision, Judge Marcia Morales Howard upheld a personal injury firm's First Amendment right to use the slogan “Don't settle for less than you deserve” and to use certain background sounds in its advertisements.
Reforms to Florida's lawyer advertising rules were already on the horizon before the decision came down. At the Florida Supreme Court's request, the Florida Bar undertook a comprehensive study of the state's lawyer advertising rules, and submitted a set of recommended revisions to the court in July.
The court has published the proposed rules for comment but hasn't scheduled oral argument, making the time frame for the court's action uncertain.
Lawyers who commented to BNA on the Harrell decision offered differing takes on its impact, either on its own or as to the effect the judge's ruling could have on the proposed rules that the state supreme court hasn't voted on yet.
“The decision lifts a significant burden from lawyers in Florida and makes it much easier for them to effectively inform consumers about the availability of claims and legal representation,” according to Gregory A. Beck of Public Citizen Litigation Group, which represents the plaintiffs in this litigation.
“Florida's rules were among the most restrictive in the country,” he told BNA. “For many years, lawyers in Florida have been subject to rules that are both pervasive in scope and unpredictable in application.”
Beck said “The decision should cause other states to think twice before following Florida's lead.”
On the other side, Barry Richard of Greenberg Traurig, Tallahassee, Fla., said he believes the proposed rules are fully consistent with the rulings in Harrell.
Richard represents the Florida Bar in the Harrell case and also served as the bar's outside counsel in the project to develop new lawyer advertising standards.
Professor Timothy P. Chinaris of Faulkner University, Jones School of Law, offered a third viewpoint. Some of the proposed rules, he said, should be revisited in light of the Harrell decision. Chinaris served as the Florida Bar's ethics director from 1989 to 1997, and represents lawyers on advertising matters.
Richard predicted that Howard's opinion could be influential and provide guidance in other jurisdictions because “it's a thorough decision by a well-respected judge.”
DEFENSE COUNSEL'S VIEW
The Harrell decision, although possibly influential in other jurisdictions, may not have much impact in Florida because proposed new rules are already under consideration.
But as Richard sees it, the decision will not have much effect in Florida itself in light of the revised advertising rules already pending before the Florida Supreme Court. The proposed rules were furnished to Judge Howard in Harrell, but she concluded that it was necessary to go ahead and address the current rules because the timing of the supreme court's action on the proposals is uncertain, he noted.
Richard sees the proposed changes as being consistent with the judge's analysis and said they will resolve any issues with Florida's lawyer advertising rules. The proposals were formulated and submitted before the decision in Harrell, he said, but “if we had read the decision first, the proposed rules would have been a likely result.”
“I can't imagine in light of Harrell why they would not adopt the rules,” he said, referring to the justices of the Florida Supreme Court.
Commenting to BNA via e-mail, Chinaris said he sees at least three ways in which the Harrell decision may be important within Florida as the supreme court considers the bar's recommendations.
First, the Harrell opinion stresses that in order to constitutionally restrict commercial speech that is not false or misleading, the bar bears the burden of presenting evidence that justifies the restriction. Howard made clear, Chinaris said, that this burden cannot be met by pointing generally to public opinion surveys or relying on outdated data.
Second, Chinaris noted, the Harrell opinion states that the availability of the bar's advisory opinion process to lawyers may help bolster the constitutionality of a rule “where the marginal applications of the Rules may otherwise be unclear.”
One of the proposed rules pending in the Florida Supreme Court, however, gives the bar a right to change its finding of compliance after the finding has been made and communicated to the advertising lawyer—even if there was no misrepresentation and the underlying rules have not changed.
If adopted, this rule would substantially undercut the efficacy of an advisory opinion from the bar, Chinaris said, “and would make it difficult, if not impossible, for the Bar to rely on its advisory opinion process as a means of bolstering the constitutionality of its rules.”
Third, Chinaris observed, the proposed rules would replace the current rules against “manipulative” features in ads—which Harrell has now held unconstitutionally vague—with standards against “unduly manipulative or intrusive” ads. “These proposed rules will be difficult to justify after Harrell,” Chinaris said.
The Harrell case got underway in 2008 when William H. Harrell Jr. and his firm Harrell & Harrell PA, a personal injury law firm based in Jacksonville, Fla., filed a lawsuit in federal district court along with co-plaintiff Public Citizen Inc., challenging numerous content restrictions in Florida's lawyer advertising rules on due process and First Amendment grounds.
Although the district court initially held that it couldn't hear most of the claims due to lack of standing and ripeness, the Eleventh Circuit decided that some of the plaintiffs' claims were justiciable and sent those aspects of the case back to the district court. At the same time, the court of appeals upheld Florida's rule requiring lawyers' television and radio commercials to be filed for review 20 days before their air date.
Back in the district court, the plaintiffs and the Florida Bar filed dueling motions for summary judgment on the remaining claims.
The district court concluded that three provisions are unconstitutionally vague on their face:
“[T]he term ‘manipulative' is so vague that it fails to adequately put members of the Bar on notice of what types of advertisements are prohibited,” Howard stated.
“Manipulative” could arguably apply to almost every lawyer advertisement, and thus the rule is susceptible to arbitrary enforcement, the court found. It was unpersuaded by the bar's reliance on securities statutes and cases interpreting them to flesh out what “manipulative” means.
The availability of advisory opinions from the bar does not cure the vagueness problem, Howard found, because the word “manipulative” lacks any core meaning. The bar's enforcement of the rules barring “manipulative” features is based solely on case-by-case rationalizations without any connection to the language of the rules, she said.
Similarly, the court found that the term “useful” in the comment to Rule 4-7.1 has no objective definition and is too subjective to survive constitutional scrutiny. The bar has not set forth any explicit standards for determining what is or is not “useful” in the context of legal advertising, it said.
“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,” Howard wrote.
The court permanently enjoined enforcement of those rules and comment.
On the other hand, the court rejected facial vagueness challenges to Florida's professional conduct rules that forbid a lawyer to make “statements describing or characterizing the quality of the lawyer's services” (Rule 4-7.2(c)(2)) and prohibit a communication about a lawyer or the lawyer's services that “promises results” (Rule 4-7.2(c)(1)(G)).
TWO RULES NOT VAGUE ON THEIR FACE
Florida's rules against advertisements that make quality claims or promise results aren't unconstitutionally vague on their face, the court concluded.
The court said that Harrell did not assert that the text of those two rules is impermissibly vague, but rather founded his challenge on a lack of enforcement standards—an alternative basis for finding a rule unconstitutionally ambiguous. As support for this challenge, he offered examples of what he contended are the bar's inexplicably inconsistent applications of the two rules.
Harrell failed to prove, the court held, that the “quality of services” and “promises results” rules delegate so much authority to those charged with enforcing them that there is a risk of arbitrary or discriminatory enforcement. While the bar has given an expansive interpretation to these standards, “a broad application of the Rules does not necessarily render them unconstitutionally vague,” Howard said.
“[T]he fact that different reviewers have occasionally had different interpretations does not render the Rules unconstitutionally vague,” the court added. It pointed out that between 1994 and 2008, the bar's ethics department issued 52,471 advisory opinions on lawyer advertisements, “yet Harrell has provided the Court with only a handful of examples of arguably inconsistent or conflicting decisions.” It therefore appears that in most cases a rule's application to a particular advertisement is plain, the court said.
“[T]he constitutionality of these Rules is bolstered by the availability of advisory opinions to assist members of the Bar where the marginal applications of the Rules may otherwise be unclear,” Howard stated.
The court also concluded, however, that the bar ran afoul of the First Amendment when it initially informed Harrell that his firm's use of the slogan “Don't settle for less than you deserve” would violate the prohibition against quality claims, Rule 4-7.2(c)(2).
The Florida Bar may not apply certain rules to prevent a personal injury firm from using the slogan “Don't settle for less than you deserve” and using certain background sounds in its television and radio commercials.
The court emphasized that the bar had dropped its opposition to the slogan and now agrees that Harrell's use of the slogan is permissible and does not violate the rule against statements characterizing the quality of a lawyer's services. Applying the rule to prohibit the slogan, as the bar did before this litigation commenced, was broader than reasonably necessary to prevent the harms that the rule was ostensibly enacted to address, the court found.
Howard also concluded that application of Florida's rule prohibiting background sounds other than instrumental music in lawyers' television and radio commercials (Rule 4-7.5(b)(1)C)) to prohibit the background sounds in Harrell's proposed advertisements—sounds caused by his dogs, gym equipment, and other activities in his firm—violates Harrell's First Amendment rights.
The court ascribed little weight to a study the bar cited to prove that the rule protects the public from being misled and prevents the denigration of the legal profession. The study asked participants about a variety of advertising techniques but did not reveal whether the participants' negative feedback extended to background sounds or vocal music, the court observed.
In the absence of evidence that the rule will advance the state's asserted interests, Howard said, the bar failed to satisfy all the requirements for regulating commercial speech under Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557 (1980).
The plaintiffs were represented by Gregory A. Beck and Brian Wolfman of Public Citizen Litigation Group in Washington, D.C., along with David M. Frank of David Frank Injury Law, Tallahassee, Fla.
Barry S. Richard, Bridget K. Smitha, and Mary H. Keating of Greenberg Traurig, Tallahassee, represented the defendants.
Full text at http://op.bna.com/mopc.nsf/r?Open=jros-8marlk.
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