Reprinted with permission from the June 24, 2011 edition of the Daily Business Review© 2011 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or firstname.lastname@example.org or visit www.almreprints.com.
Changes to attorney advertising rules cumbersome, costly
Brian Tannebaum and Joshua M. King say the Florida Bar's changes to attorney advertising rules continue to be hyper-technical and difficult for both attorneys and the Bar to enforce.
The Florida Bar has proposed wholesale changes to Florida's attorney advertising rules — changes designed to comply with Constitutional limits on the Bar's ability to regulate attorney speech.
Regulating attorney speech in lieu of standing up for the First Amendment has been a cornerstone of state bar associations, and the Florida Bar's regulation of lawyer advertising is the most restrictive in the nation. The basis for regulating what attorneys can say about themselves is — in layman's terms — an exercise in protecting the public from lawyers. That the Florida Bar's new rules claim to consider the Constitution as a partner rather than an enemy of regulating lawyers is a step in the right direction. Bar associations should be as interested in the future of the legal profession as they are in acting as a consumer protection agency.
The topic is scheduled for discussion today at the Florida Bar's annual convention in Orlando.
Florida has a long history of excessive regulation of attorney advertising, from its incredibly detailed and hard-to-decipher rules to its unpredictable process devoted to review and approval of advertisements. In its latest venture into changing the rules, the Bar attempted to bring a little common sense to its regulation of attorney websites, proposing that websites be exempted from most of the advertising rules as "information" provided at the request of a client. The Florida Supreme Court's response?
Not so fast.
In its place, the Justices proposed that websites comply with the advertising rules and that consumers accept disclaimers prior to learning more about the lawyer. This proposal has met with near-universal dissent (except from the Web-developer industry), culminating in the eight largest law firms in the state bringing a petition to the Florida Supreme Court asking that it abandon this proposal. In response, the Bar has stepped back in, saying all sorts of good things about the need for advertising regulations to respect Constitutional limits and attempting to overhaul the advertising rules accordingly.
But what do the Bar's proposed new rules do, precisely? They haven't been curtailed, are still overly detailed, and most advertising must still be pre-approved by the Florida Bar.
In fact, the only major proposed changes would permit some forms of testimonials and past results obtained by an attorney. The Bar should be commended for finally recognizing that Florida's longstanding ban on these two types of advertising is wholly unconstitutional, as evidenced by successful First Amendment lawsuits attacking attorney advertising regulations in New York and Louisiana.
But outside of these nominal changes, the revised rules are nothing more than a reshuffling of the deck chairs. The rules are cumbersome, costly and of no benefit to potential clients. Curiously, although several surveys were conducted on consumer attitudes toward attorney advertising, there is no indication that Florida's current regulatory regime offers any meaningful protection for consumers. In fact, the Federal Trade Commission has previously commented on the effect of the Florida Bar's advertising rules potentially harming consumers (by making it harder to find information about legal services and driving up costs) because of its aggressive regulatory stance.
While the Bar expresses First Amendment concerns, the new rules actually expand the scope of the Bar's pre-publication $150 per ad evaluation. The concurrent review for print, direct mail and Internet advertising is replaced with a "prior-restraint" 20-day advance review of virtually all advertising. The Bar should instead begin with the premise that attorneys will comply with the rules, and if they engage in deceptive advertising, the Bar can then enforce its rules.
Despite changes, the advertising rules regulating the Florida Bar continue to be hyper-technical and difficult for both attorneys and the Bar to enforce. Rule 4-8.4 should be the only rule governing advertising — in sum, a lawyer cannot say anything that is false, deceptive, or misleading. Seems pretty basic.
Instead we have provisions like the comments to rule 4-7.5 (prohibiting "unduly manipulative or intrusive advertisements"), which render permissible an ad that shows a doctor examining an X-ray, but not permissible to show a doctor leaving an instrument in a patient. This type of specificity is both unhelpful and overreaching. It fails to provide clarity while simultaneously suggesting that entire categories of advertising methods are prohibited, regardless of context, making it difficult to believe that the Bar can apply these rules in a consistent and constitutional fashion.
Throwing out the old rules is a good first step. But here's a suggestion for the Bar: Don't replace the rules with a new system that's only slightly less offensive to the legal profession. The move toward the Florida Bar becoming more of a consumer protection agency than an association to serve Florida's Lawyers has gone too far. While percentage-wise, few lawyers break the rules, half of the Bar's budget is spent on lawyer discipline. Lawyers who violate the rules should be disciplined, but the Bar also needs to remember that most of its members are upstanding, honorable and ethical practitioners. The message sent by overly restrictive advertising rules is that consumers are stupid and need protection from lawyers. Not only is that false, but what does it say about how the Bar views the profession?
The Bar should eliminate the counterproductive and costly review of advertising. Replace the rest of the rules with a simple and straightforward prohibition (if 4-8.4 isn't clear enough) on false advertising and in-person solicitation. The goal of maintaining the dignity of the profession should go hand in hand with the Bar's obligation to better serve both consumers of legal services and the lawyers of Florida.
Non-anonymous comments welcome. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.