Several years ago I suggested to the Florida Bar that they revise the Florida Bar Advertising Rules to one rule saying you can’t say or do anything false, misleading or deceptive.
Although the bar’s stated goal in the revision to the rules of preventing the dissemination of misleading and unduly manipulative information takes a mild turn in that direction, we now have 12 rules where we had 10, and many new terms.
The Supreme Court of Florida stated in its 53-page opinion codifying the new rules that: The proposals are designed to make the advertising rules more cohesive, easier for lawyers who advertise to understand, and less cumbersome for the bar to apply and enforce.
I don’t see it.
New terms include “unduly,” “manipulative,” “objectively verifiable,” “potentially misleading,” and “unduly manipulative or intrusive.” Yeah, grab the Tylenol.
The Internet? It’s included. All of it. You are responsible for anything false, misleading or deceptive that is published on any site you control. Does the bar want you to submit every tweet, blog post or testimonial prior to publication? No.
Transparency, not just accuracy, seems to be a theme:
A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client’s actual damages.
And look out if you’re one of those who claim to have offices all over the state, but all you do is routinely send the case to a lawyer in that jurisdiction, you’ve got to say that in the ad.
One of several parts of the new rules that causes me to question the intent is the following:
An ad is “deceptive” or “inherently misleading” if it implies the existence of a material nonexistent fact, including a statement in an advertisement that a lawyer is a founding member of a legal organization when the lawyer has just begun practicing law. Such a statement falsely implies that the lawyer has been practicing law longer than the lawyer actually has.
Maybe I misunderstand this, but if a two year lawyer opens a practice in Smalltown, Florida where there are 17 lawyers and no local bar association, and starts the “Smalltown Bar Association,” he can’t claim himself as a “founding member” in an ad?
On the other side of confusion and concern is the specific guidance offered:
We can say that we are aggressive, intelligent, creative, honest, or trustworthy, and use the words goal, dedicated, mission, and philosophy.
We cannot say that we are “the best,” “second to none,” or “the finest.”
For you TV and radio folks, no fake judges or police officers, but you can use a local DJ or radio personality as long as they don’t endorse the lawyer.
There are some good things in there:
- Past successes can now be advertised unless they are: atypical of persons under similar circumstances.
- Testimonials are allowed “as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible.”
Now let’s talk about how you stay out of trouble.
In my experience the types of advertisements that usually attract the attention of the bar are television, newspaper, billboard, bus bench and direct mail. Lawyer-to-lawyer advertising is not subject to all the same requirements as consumer advertising, but still must be factual.
Always file the ad and pay the filing fee. Remember that there are exemptions to the filing requirement. These are what I call the “name, address, telephone number” type ads that only provide basic factual information.
The ad must be filed no later than 20 days prior to publication. If you hear nothing in 15 days, you can publish the ad, subject to the bar notifying you later that it doesn’t comply.
You can also submit the ad prior to its completion to determine if a part of it complies. If you do that and pay the fee, there is no additional fee to review it once the ad is completed.
A decision that the ad complies is binding on the bar in a grievance proceeding “unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement.” The bar also has the right to change their decision as long as you receive notice.
Finally, if you use a referral service, the bar is taking a close look, so please read Rule 4-7.22, specifically section (b).
Right about now you may be thinking the same thing Justice Canady said in the opinion: I am persuaded that the proposed rules remain unduly restrictive. At a minimum.