Federal Judge Smacks Florida Bar On Advertising Rules

This stuff makes me happy, because I think the Florida Bar has become more of a consumer protection agency, than an association of lawyers. It also makes me happy because I have argued that the advertising rules should be as follows: "Read rule 4-8.4," (no false, misleading, deceptive behavior.)

But the Florida Bar continues to micro manage lawyer advertising, protecting Aunt Sadie from some errant letter about a legal matter.

So now Jacksonville federal judge Marcia Morales Howard ruled some of the advertising rules unconstitutional.

Lawyer William Harrell wanted to use the slogan "Don't Settle for Less Than You Deserve," but that's a no no.

Judge Howard held the rules to be "vague."

They're not vague, they're ridiculous.

Public Citizen brought the lawsuit, and in critizing the advertising rules, made the point as to why they exist: "The rules have made it extremely difficult for lawyers in Florida to effectively reach injured consumers in need of representation," said Greg Beck.

That's right, the goal is to keep us away, because consumers don't want to hear from us.

But the Bar has to have evidence, and facts, and they didn't:

The Bar does not articulate any basis for believing that “Don’t settle for less
than you deserve” could potentially mislead the public or erode the public’s confidence in the legal profession. See Mason, 208 F.3d at 958 (“The Bar has the burden in this case of producing concrete evidence that Mason’s use of the words ‘AV Rated, the Highest Rating’ threatened to mislead the public.”). Moreover, the Bar presents no evidence, anecdotal or otherwise, that the phrase has misled the public or tarnished the reputation of the legal profession in the public’s eyes. Mason, 208 F.3d at 957. Instead, the Bar generally cites to data which purportedly shows that television advertising “lowers the public’s respect for the fairness and integrity of the legal system and adversely affects the system.”

The Florida Bar has since amended the advertising rules, but they're still ridiculous, cumbersome, and subject to all kinds of interpretation that leaves lawyers wondering whether it's worth advertising at all.

(Editor's Note: I hate most lawyer advertising but defend a lawyer's right to advertise - I"m kind of a hyporite that way.)

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.

The Florida Bar: We'll Tell You Who You Can Be Friends With

With a straight face, The Florida Bar determined at it's December 11th meeting of the Board of Governors, the following in regard to lawyer websites: (AVVO's General Counsel Josh King has his thoughts here).

[1] Lawyers’ use of online social networking sites is subject to the same rules as lawyer Web sites.

[2] Web site visitors (meaning "stupid potential clients that we need to protect from big bad lawyers) must view a disclaimer page that clearly indicates what information will be viewed, including: That page could include whether all results or client testimonials are provided, that the results or testimonials are not necessarily representative of results obtained by the lawyer or all clients’ experience with the lawyer, and that a prospective client’s individual facts and circumstances may differ from the matter(s) in which the results or testimonial are provided.

The disclaimer also has to say that, (this is great) the information behind the disclaimer is not regulated by Bar advertising rules. (As Elmer Fudd would say: be berwey berwey careful).

[3] On the disclaimer page, the viewer has to accept or acknowledge receipt of the information before being given access to pages that follow. (Merry Christmas to web-site designers).

Oh, and lookie here, according to the Florida Bar News Article: The committee acted at the request of Ft. Lauderdale lawyer Peter T. Boyd, who owns PaperStreet Web Design, a company that designs Web sites for other lawyers.

And here's more protection for those idiot potential clients who the Bar wants to protect: The information would be considered “upon request” only if the lawyer sets the Web site up to block (BLOCK!) the area containing past results and testimonials from viewers who have not submitted acknowledgement of viewing the disclaimer page, and the testimonials and/or past results would only be shown upon submission of the agreement after viewing the disclaimer page.

Seriously folks, when will we realize that Bar advertising rules are nothing more than calling potential clients "stupid?"

Now that we're done making sure potential clients are protected from themselves when viewing lawyer websites, lets move to social networking.

Facebook, LinkedIn, YouTube, Twitter, and all other social networking sites are now subject to Rule 4-7.2, but are not required to be filed for review.

No statements that characterize the quality of legal services being offered; provide information regarding past results; or include testimonials. No, no, no.

Lawyers are not responsible for other party’s postings,(yet), unless the lawyer prompts the posting or uses the other party to circumvent the lawyer advertising rules.

And this is the absolute best:

Invitations to a third party to view or link to the lawyer’s social networking page on an unsolicited basis are considered in-person solicitation and violate Rule 4-7.4(a), unless the third party is the lawyer’s current client, former client, relative, or another lawyer.

Oh, and YouTube postings must comply with Rule 4-7.2, except the requirement they be submitted to the Bar for review.

The Bar did note in asking for a six-month moratorium on enforcement, that "the practical effect is most lawyer Web sites are out of compliance with the new rules.

All of this is utterly ridiculous, and displays a complete lack of understanding of social media. I have no problem with keeping lawyers honest - whether it's in person, or on-line, but the Bar has rules to cover this already:

RULE 4-8.4 MISCONDUCT

A lawyer shall not:

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation....

That's pretty clear to me.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

Florida Bar Amends Website Rules, And Lawyers Freak Out

Lawyers are an interesting bunch. We live in the world of providing information to clients, obtaining information to use in our cases, yet when we "hear things," we simply freak out.

Such as that the Florida Bar has changed the rules regarding websites.

So what do we do when we hear this? Well, I do something unique - a Google search.

I may type in something like "Florida Bar website rules," and come up with this.

Why are you calling me, emailing me, asking me "what does this all mean?"

Do you not have Google? Has your subscription lapsed?

Here's the new rules (I found them here):

Websites will be subject to the general advertising regulations set forth in Rule 4-7.2. Websites will remain exempt from the filing requirement under Rule 4-7.8. The jurisdictional disclosure requirement will no longer be required on the homepage, but will be required to appear on the website. Requirements for direct e-mail will be reinstated: a statement of qualifications will be required and a disclosure if a lawyer other than the one whose name appears in the advertisement will handle the matter will be required. Direct e-mail also will be required to begin the subject line with the statement "legal advertisement." The changes will be effective January 1, 2010.

Here's the secret to keeping you out of trouble:

While you don't have to file the website as an advertisement for review, go ahead and do it anyway. Pay the $150. The Bar will give you a nice opinion on what's wrong with the site.

And it's cheaper than a lawyer.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

The Florida Bar's Ad Rules Take A Good Step Back

Although I will fight for the rights of my clients who are charged with advertising violations, I am not a fan of lawyer advertising. I'm not talking about the listing in the directory or the ad in the charity dinner program or business journal. I'm talking about the cheesy inaccurate puffing that goes on in the yellow pages, on billboards, and on TV.

I have said, and strongly believe, that The Florida Bar has gone over the top in advertising regulation. I think they've gone so far into regulating every aspect of advertising that they don't know how to get out of it. The premise is clear: The public is stupid and must be protected. They cannot see through ads that proclaim the lawyer is the "best," and may find themselves disappointed if they hire one who talks about "past success." Thus, the Bar must protect the consumer from themselves. It amazes me that the public doesn't even realize that the Bar rules are aimed at their stupidity.

As reported on Public Citizen, as of yesterday, The Florida Bar has agreed to exempt online lawyer directories such as Avvo.com and Linkedin.com from its rules prohibiting client testimonials, statements of past results and comments on quality of services, settling a case brought by Public Citizen on behalf of a Boca Raton, Fla. attorney.

That attorney is Joel Rothman.

According to Public Citizen the settlement is an agreement by the Florida Bar to treat lawyer profiles on directory sites as information requested by the client, which is not subject to the same restrictions as unsolicited ads. The Bar will also review its lawyer advertising rules regarding Web sites maintained by lawyers and recommend changes to the Florida Supreme Court.

Public Citizen attorney Greg Beck, who represented Joel Rothman, states correctly that “this settlement is a victory for the free speech rights of attorneys and makes it far easier for consumers to make a decision on legal representation.”

This truly, is a victory. How anyone could think that a client, a real client, would put a lawyer in jeopardy by writing online that they were happy with the lawyer's services is beyond the pale. We complain that the profession has lost it's luster, that lawyers are no longer looked up to in society. Yet when a client of a lawyer wants to say something good about the lawyer, there's the Bar to run in and say, "no, can't do that."

I commend the Bar for settling this case in a manner that allows the consumer to speak, and exempts the lawyer from discipline for that speech (I can't even believe I'm writing that sentence. To think that the Bar would discipline a lawyer for the words of a client is shameful.)

I do hope the Bar takes a look at all the advertising rules, and takes a few more good steps back.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com