In a long-awaited decision, the Florida Supreme Court has imposed new advertising rules for lawyers that apply looser standards for television, print and billboard advertising but stricter standards for websites.
The new rules, which essentially rubber-stamp recommendations by The Florida Bar, are scheduled to take effect May 1. It’s unclear if they will face a challenge from attorneys who have fought past regulations on First Amendment grounds.
The court ruling appears to cut off the debate over how far lawyers could go with their advertising, which has engaged The Florida Bar, Florida Supreme Court, law firms and public interest groups like Public Citizen for at least five years. The Florida Bar initially recommended in 2008 that the Florida Supreme Court extend lawyer advertising rules to the home pages of lawyer websites.
Other states have been awaiting the ruling before imposing their own lawyer advertising rules. Florida’s rules have been among the most stringent in the nation.
The issue split the court.
Justices Ricky Polston, R. Fred Lewis, Jorge Labarga and James Perry concurred on the unsigned decision. Justice Peggy Quince concurred in part and dissented in part. Justices Barbara Pariente and Charles Canady dissented with opinions.
The new rules allow testimonials, references to past results, even some dramatizations, and attorney claims in ads must be “objectively verifiable.”
“If an attorney can show by objective facts that the statement is true, then he has presented an objectively verifiable statement in the advertisement,” the court stated. “On the other hand, making a subjective statement such as ‘the best trial lawyer in Florida’ is a misleading statement that fails to meet the requirement because it is neither objective nor verifiable.”
The court also ruled lawyers who are former judges or elected officials or have other titles may use them, provided they follow the lawyers’ names.
The new rules on law firm websites are raising the most concern, both inside and outside the court. The court said law firm websites must comply with the same rules as ads. Eight large law firms banded together to protest the requirement when it was proposed by The Bar, stating it violated their First Amendment rights, was cumbersome and would put them at a competitive disadvantage with out-of-state law firms.
Pariente agreed with the firms, saying, “In my view, the potential harms and dangers presented by traditional advertising require closer oversight, whereas the inclusion of lawyers’ websites and information upon request as part of the lawyer advertising restrictions is unnecessary and has the potential to result in a chilling effect.”
Pariente went on to state websites should be exempt and said she questions “whether the entire revamped approach to regulating traditional forms of advertising is a beneficial change.”
In his dissent, Canady called The Bar’s proposed rules “unduly restrictive” and suggested The Bar “go further to address concerns related to the protection of First Amendment rights and of prospective clients’ interest in having unimpeded access to information that they consider useful.”
Tom Julin, a partner at Hunton & Williams who led the coalition of eight law firms, called the ruling “moderately disappointing.”
“In the big scheme of things, it shouldn’t be too bad for most law firms,” he said. “During this whole process, we were fairly successful in getting The Bar to temper the advertising rules so that if they were extended to websites they wouldn’t have the type of serious impact the original rules would have had.”
Julin said he was pleased that, under the new rules, lawyers receiving complaints about their ads or websites will be given 15 days to remove the objectionable matter before facing disciplinary action.
Julin called the dissents by Pariente and Canady “important” and said they open the door for challenges in federal court on a case-by-case basis.
He said it’s unlikely the firms would mount a constitutional challenge to the ruling.
Carl Schwait, a Gainesville lawyer who chaired a Bar committee overseeing the new rules, said he was happy with the court’s ruling.
“The Florida Bar is very happy and very grateful that the Florida Supreme Court has recommended all our proposals,” he said. “They just did minor tweaking.”
Public Citizen, the Washington-based public interest group that sued The Bar over what it called overly strict advertising rules, was still studying the ruling at deadline and had no immediate comment.