Greg Barnhart (Melanie Bell)
Searcy Denney Scarola Barnhart & Shipley in West Palm Beach is suing The Florida Bar, alleging its new attorney advertising rules violate the First Amendment.
The prominent personal injury law firm is represented by two First Amendment lawyers—Richard Bush of Bush & Augspurger in Tallahassee and Greg Beck of Gupta Beck in Washington—in the lawsuit filed Wednesday in Tallahassee federal court.
The lawsuit challenges amendments to bar advertising rules that took effect May 1.
Florida Bar spokeswoman Francine Walker declined comment, citing the pending litigation.
The Bar completed a massive overhaul of its attorney advertising rules, which were approved by the Florida Supreme Court. The rules, which regulate attorney websites, social media, ads and commercials, are widely considered the most stringent in the country.
Other law firms have sued The Bar over its attorney advertising rules in prior years. Beck said this is the first lawsuit targeting the new rules.
“A lot of lawyers are reluctant to file suit against The Bar, especially when it’s related to ethics,” Beck said. “But I’ve been contacted by a number of lawyers who were supportive. So we may have other lawyers joining in with amicus briefs.”
Searcy Denney filed the suit after submitting its website, blog and LinkedIn pages to The Bar for an advisory opinion, said partner F. Gregory Barnhart. The Bar objected to all versions, including Barnhart’s resume listing every case he has tried or settled for more than $1 million. The Bar stated such information was not “objectively verifiable,” Barnhart said.
The law firm appealed The Bar’s decision to its standing committee on advertising. After three meetings, the committee affirmed The Bar’s decision.
“The advisory opinion was so scattered and so impossible to deal with that we just decided there is no way you can work with them,” Barnhart said. “It’s such a denial of our First Amendment rights. It’s an impossible morass.
“While we have great esteem for The Bar, if you make it so lawyers in Florida cannot compete with lawyers outside of Florida, you are doing a tremendous disservice to lawyers in Florida,” he added.
The lawsuit said The Bar also concluded the firm’s entries on the social media site LinkedIn violate several rules because LinkedIn automatically lists the firm’s specialties and includes an unsolicited review posted by a former client.
Other lawyers have complained in particular about the LinkedIn restrictions, and The Bar has requested a meeting with LinkedIn officials to discuss whether it can alter its specialties category to accommodate Florida rules.
“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 lawsuit stated. “Indeed, Florida’s rules are so broad that they would have subjected Abraham Lincoln to discipline for stating in an 1852 newspaper advertisement that his firm handled business with ‘promptness and fidelity’—two words that are no more ‘objectively verifiable’ than those The Bar concludes violate its ethic rules.”
The plaintiffs, including partners Christian Searcy, Earl Denney Jr., John Scarola, John Shipley and Barnhart, seek a declaration that The Bar’s new advertising rules violate the First Amendment and ask for an injunction barring enforcement.
Also named as defendants in the suit are John F. Harkness, executive director of The Florida Bar; Elizabeth Tarbert, chief ethics counsel of The Bar’s legal division; James Watson, chief disciplinary counsel of the Tallahassee branch of The Bar’s legal division; and Adria Quintela, chief disciplinary counsel of the Fort Lauderdale branch of The Bar’s legal division.