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Oct. 2 — Florida's ethics rule that prohibits lawyers from claiming to be experts or specialists in an area of law unless they've been officially certified is unconstitutional, the U.S. District Court for the Northern District of Florida held Sept. 30 (Searcy v. Fla. Bar, 2015 BL 320091, N.D. Fla., No. 4:13cv664-RH/CAS, 9/30/15, further proceedings in 30 Law. Man. Prof. Conduct 21).
However, the court found it premature to address a law firm's additional challenge to a separate rule permitting only “objectively verifiable” statements on attorneys' websites and social media presence. That challenge is not justiciable until the bar's board of governors provides a more definitive interpretation of the rule, according to Judge Robert L. Hinkle.
In 2013 the Florida Supreme Court adopted a comprehensive revision to its lawyer advertising rules that apply to all forms of attorneys' advertising, including websites. Before the overhaul, Florida's lawyer advertising rules did not treat websites as advertising. See 29 Law. Man. Prof. Conduct 97.
“Florida stands out from other jurisdictions in the seriousness of its enforcement of advertising rules, which makes it more likely that a lawyer will challenge a rule.”Greg Beck
Attorney for Plaintiff Searcy Denney law firm
As contemplated by the new rules, the personal injury law firm Searcy Denney Scarola Barnhart & Shipley P.A., based in West Palm Beach and Tallahassee, Fla., submitted sample pages from its websites, blogs and social media materials for the bar's review. After unsuccessful back-and-forth with bar officials, the firm and its five name partners filed a complaint challenging two of the new rules.
One was Florida Rule of Professional Conduct 4-7.14(a)(4), which prohibits a statement that a lawyer is a specialist or expert in an area of law unless the lawyer has been certified as such under the Florida Bar's certification program, another state's comparable plan or a certification plan accredited by the Florida Bar or the ABA.
Hinkle said that rule flunks the test in Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980), for assessing the constitutionality of restrictions on commercial speech under the First Amendment.
“[T]he Bar's ban on truthful statements about a lawyer's or law firm's specialty or expertise, at least as applied to websites, fails all three prongs of the Central Hudson test,” Hinkle wrote, using “websites” as shorthand for websites, blogs and social media.
The court noted that because law firms themselves cannot be officially certified, the rule prohibits Searcy Denney from saying it specializes or has expertise in mass tort cases, unsafe product cases or personal injury cases even though the firm undeniably has expertise in these areas.
And because there is no official certification in the narrow fields of mass tort cases and unsafe product cases, Hinkle said, the rule precludes Searcy Denney attorneys from claiming to specialize or have expertise in these areas, even if the lawyer handles only cases of that kind and has successfully handled many such matters.
Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise.
Hinkle said the two justifications for the rule the bar offered fell short. First, he said, there was no evidence that people would be duped into thinking that a lawyer is board-certified as a specialist merely because the lawyer claims to be a specialist or an expert in a field of law. If the bar is really concerned with that possibility there are narrower ways to attack the problem, he stated.
Second, Hinkle was not persuaded by the bar's assertion that lawyers must be prevented from “self-certifying” that they are experts or specialists. Nobody has proposed that lawyers be allowed to claim expertise without a basis for doing so, but the rule as presently written prohibits even truthful expertise and specialization claims, he said.
Bloomberg BNA asked Greg Beck, one of the lawyers for the plaintiffs, what impact the decision may have in other jurisdictions. Beck noted that most jurisdictions regulate the ways in which lawyers can claim certification or specialization in a particular area of the law. “Some of those rules are probably unconstitutional,” he said.
However, Beck said “Florida stands out from other jurisdictions in the seriousness of its enforcement of advertising rules, which makes it more likely that a lawyer will challenge a rule.” Florida also stands out in the scope of its rule, which restricts any statement that implies expertise or specialization without certification, he said.
“The reality, of course, is that most lawyers today specialize in particular areas of law, and Florida was not helping the public by preventing lawyers from telling the truth about their specialties,” he stated.
The law firm's complaint also challenges Florida Rule of Professional Conduct 4-7.13. The bar's advertising committee has interpreted that rule as requiring any statement on an attorney's website to be “objectively verifiable,” the court said.
The advertising committee cited this rule in nixing some of Searcy Denney's advertising, such as statements on its website that it has “32 years of experience handling mass tort cases, resulting in justice for clients in a wide variety of circumstances” and that it is “one of the few law firms in the country to successfully represent innocent victims of dangerous herbal supplements.” According to the advertising committee, the terms “justice” and “successfully” are not objectively verifiable.
The court concluded that the firm's challenge to Rule 4-7.13 is not ripe for review under the principles set out in Harrell v. Fla. Bar, 2010 BL 136051, 608 F.3d 1241, 26 Law. Man. Prof. Conduct 390 (11th Cir. 2010).
The court found that two of the Harrell ripeness conditions were met: Searcy Denney and its lawyers plan to continue making statements that may violate the rule, and they face a credible threat of disciplinary action for doing so.
“Searcy Denney can hardly be criticized for fearing the worst,” Hinkle said, citing the bar's “long and undeniable trend towards increasingly restrictive measures to control attorney advertising,” “the many inconsistent and sometimes indefensible positions the Bar has taken in other instances” and the opinions of the bar's advertising committee about Searcy Denney's advertising on its website.
However, the court found that the third Harrell ripeness condition—that the rule's application is clear on its face—has not yet been satisfied for this rule because Searcy Denney did not seek review of the advertising committee's positions by the bar's board of governors, which sets binding policy for the bar.
Until the board of governors interprets the rule in an unconstitutional manner, the challenge is premature, Hinkle said.
Beck told Bloomberg BNA that “Searcy Denney will inevitably have to resubmit statements the Bar deems objectively unverifiable, because the advertising rules require filing and preclearance of most forms of advertising.”
Beck said he hopes the bar will heed the guidance in the court's opinion in reviewing Searcy Denney's ads. “We think the opinion makes clear that, if the Bar persists in its restrictive interpretations of the rule, the rule would not fare well in a future challenge,” he said.
Beck, Washington, D.C., is representing Searcy Denney along with Richard B. Bush of Bush & Augspurger P.A., Tallahassee, Fla.
Barry Richard and Michael H. Moody of Greenberg Traurig P.A., Tallahassee, are representing the defendants.
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