Major law firms, the American Civil Liberties Union Florida and a lawyer referral service are asking the Florida Supreme Court to reject proposed rules for lawyer websites.
The court’s decision will be the culmination of years of study by The Florida Bar and various committees on how lawyers should be permitted to advertise their services and depict themselves on their websites. Florida Bar advertising rules, some of the most restrictive in the country, have been challenged in court on free-speech grounds.
The court must balance the First Amendment rights of lawyers and its desire to protect the public from unscrupulous lawyers making outrageous claims.
The Bar proposed a complete rewrite of advertising rules, mandating that lawyer websites, like other forms of promotion, be limited to claims that are “objectively verifiable.” Lawyers also would be barred from using actors and other celebrities to pitch their services unless they are clients.
Tom Julin of Hunton & Williams argued on behalf of a consortium of eight large law firms: Bilzin Sumberg Baena Price & Axelrod, Carlton Fields, Foley & Lardner, Holland & Knight, Hunton & Williams, Jorden Burt, Weil Gotshal & Manges and White & Case. He urged the court to follow less restrictive American Bar Association rules.
Under the proposed Florida Bar rules, law firms will wind up removing most information about lawyers’ results and successes from websites and deprive potential clients of vital information, Julin said.
“Law firms are conservative institutions,” he said. “What I’m here to argue is it’s not a good thing to have conservative large law firms removing materials from their websites. They will take the most conservative approach and take down all information on past results and lawyer awards.”
Julin also argued business websites are not considered commercial speech under the U.S. Supreme Court standard.
Justice Barbara Pariente argued that lawyer results should be easily verifiable, noting, “You either got the verdict or defended something or … made it into Best Lawyers of America or you didn’t. Now saying you’re the best lawyer in Miami-Dade County, you couldn’t put that on your website.”
Marketing V. Advertising
However, she acknowledged websites differ greatly from ads.
“I’ve expressed my views over the years about TV advertising and buses,” she said. “It just seems that attorney websites … is just a different category from the point of view of the harm that can occur with TV ads. Websites are marketing rather than advertising, and to me there is a distinction in how the public sees it.”
In fact, Pariente noted law firms would be “laughed out of their client base” if they portrayed police officers and judges on their websites as some lawyers do in ads and billboards. Additionally, she noted The Bar lacks the staff to review hundreds of thousands of pages of lawyer websites.
Barry Richard, the Greenberg Traurig lawyer who represents The Bar, acknowledged: “We are cognizant of the differences. But there are national guidelines on this. Some are not palatable, but nevertheless those are the rules.”
He noted the court previously ruled The Bar can regulate deception and misleading statements, saying, “It doesn’t matter if the deception occurs in newspaper ads or on websites.”
Violators would be given an opportunity to remove the problematic material from their websites before facing discipline, Richard added.
Joe Lang, a partner with Carlton Fields in Tampa, made a separate argument on behalf of Carlton Fields and Bilzin Sumberg. He said those two firms, the only Florida-based law firms in the consortium, would be at a disadvantage compared with national firms because they would not be subject to The Bar’s website rules.
West Palm Beach solo attorney James K. Green, who represents the ACLU of Florida and Searcy Denney Scarola Barnhart & Shipley of West Palm Beach, also asked the court to relax the restrictions on lawyer websites.
Tim Chinaris, an Alabama attorney who represents the South Florida lawyer referral service 411 PAIN, said the rules barring ads from depicting “authority figures” fail to define what they are. He also asked the court to refrain from adopting new advertising rules until The Bar completes its plan to revamp regulations on lawyer referral services.
The justices also debated whether retired justices can list “retired justice” on their business cards. As part of the advertising overhaul, The Bar would prohibit former justices from referring to their past service on the bench in briefs or on letterhead. But they would be allowed to list the information in biographical information.
Canady said he agreed with the proposal, saying former justices’ use of the term “implies they have special influence or entry to the courts.”
But Justice R. Fred Lewis argued former justices ought to be able to use the words on business cards because it’s the truth.
“I sat next to former Justice Charles Wells for years,” he said. “This insinuates we believe we have nothing but corrupt institutions. It’s an un-American view.”