Florida is renowned for having some of the most restrictive ethical rules on advertising. I recently discussed how the ethical opinions of the Florida Bar concerning use of social media was reminiscent of an old man yelling at children to get off his lawn. However, thanks to new amendments to the Florida ethics rules, the restrictions on advertising by attorneys, particularly online, have become much more onerous.
A new federal lawsuit, brought by the partners of Searcy Denney Scarola Barnhart & Shipley, challenges both the terms and application of Florida’s advertising rules. The lawsuit, Searcy et al. v. The Florida Bar, 4:13-cv-664-RH-CAS, filed in federal district court, alleges that Florida’s ethics rules, as amended effective in May 2013, violate the 1st Amendment free speech protections and are unconstitutionally vague, even as applied.
While the outcome of the lawsuit will not be known for some time, here are 5 Reasons Florida’s Ethical Rules on Advertising are Ridiculous:
1) The Filing Requirements
Advertisements for legal services, subject to a few exceptions – including websites, must be filed with the Florida bar at least 20 days before the ad is used. And you have to pay $150 for the privilege of having EACH ad reviewed. And even preliminary approval isn’t a guarantee that your ad won’t be a violation of the rules.
Although the filing requirement does not apply to websites, it does apply to any other type of internet advertising, and MAY apply to any entry on a Social Media site. Oh, and your filing MUST be sent by mail. That’s right, you can’t send it by fax OR email, as shown here:
The rules require that the filing include about everything relating to the ad, including the ad in the format it’ll be used, a full transcript of any audio or video, and even a copy of the envelope the ad will be mailed in. Just how complex must the filing be? Well, the basic guide to compliance is 6 pages of single-spaced text.
Is this rule an unconstitutional prior restraint of free speech? Florida better come up with a really good reason they need this rule.
2) Excessive restriction of speech on websites and blogs
Even before May 1, 2013, Florida had some of the most restrictive ethical rules regarding advertising. However, those rules did not explicitly control law firm websites, social media pages, or blogs, which simply could not be false or directly misleading. The amended rules now apply to websites and social media, although websites are exempted from the filing requirement.
So imagine your firm, which has maintained a website for years, is contacted by the bar. Under the new rules, the bar representative tells you, your site contains statements that are not “objectively verifiable” because your law firm’s blog espouses opinions about tort reform only benefitting the insurance industry (along with other discussion of law and policy). Moreover, the representative tells you, your discussions about prior cases are “materially misleading” because they don’t include “all of the pertinent facts of each case.”
That’s exactly the position the plaintiffs in the Searcy case, whose website was ethically compliant under prior standards, now find themselves.
3) Lack of Transparency
Let’s continue the hypothetical: you’ve been informed by the bar that your website is now in violation. Your website discusses your prior cases, including examples of favorable results you’ve been able to obtain. You go out of your way to state that the results are not typical, and list the area of practice for each case. Again, the information was in compliance with the prior standards.
However, under the new rules, the discussion of your prior results is a violation, purportedly because it doesn’t contain all the “pertinent facts” of each case. So you ask the bar, through a formal request, for advice on what it considers “pertinent.” And… crickets.
The Searcy plaintiffs allege that, when they made formal requests regarding what facts were “pertinent,” the Florida bar’s two opinion letters refused to provide any clarification.
That’s right, even if you ask what facts are “pertinent,” you may never find out.
4) They’re Vague, Unclear and Ambiguous
Under the new rules, attorney advertising is unethical if it is “potentially misleading.” So what does potentially misleading mean? According to the rules, it includes:
- Ads that are subject to “varying reasonable interpretations,” one or more of which would be “materially misleading” in a “relevant context”; and
- Ads that are “literally accurate” but could “reasonably mislead” a potential client regarding a “material fact”.
I tend to refer to rules like these as “job creators.” Why? Well, just to explain what this rule means, the Florida bar needs to now employ people to define “varying reasonable interpretations,” “materially misleading,” “relevant context,” “reasonably mislead,” and “material fact”?
And thanks to #3, above, you might never know exactly what those terms mean.
5) Lack of effective guidance from the Florida bar
Ok, so maybe I’m being a little unfair. After all, the Florida bar’s site does constantly refer visitors who are in need of guidance to something called The Handbook on Lawyer Advertising & Solicitation.
The Handbook, which purportedly comes in at approximately 120 pages, can be found on the Florida bar’s website. Except…
That’s right. The guide provided by the Florida bar to help attorneys comply with the new rules has been taken down, and will return “shortly.”