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State Bar's Advertising Rules Unconstitutional

By Candice A. Garcia-Rodrigo, Litigation News Contributing Editor – February 26, 2016

 

Certain state bar rules governing advertising of specializations or expertise are unconstitutional as applied to websites, blogs, and social media materials. Searcy v. Florida Bar. Attorneys have a First Amendment interest in being able to present truthful information about their practice that outweighs the bar’s interest in protecting potential clients. The opinion helps attorneys understand how to legally advertise expertise.


Expertise Claims
The Florida Bar’s rules prohibit individual attorneys from claiming to have an expertise or specialize in a practice area, unless the bar certifies the attorney in that area of law, even if the claim is true. The rules also prohibit law firms from claiming expertise, because law firms cannot be board-certified. Five partners of a personal injury law firm that focuses primarily on mass-tort and unsafe product cases, areas of law that the bar does not currently certify, brought suit in the U.S. District Court for the Northern District of Florida after attempting to bring their firm’s website into compliance with revised rules on advertising.


The primary rule at issue prevents attorneys from making “potentially misleading advertisements,” which includes statements that the attorney is a specialist, expert or board-certified, unless certified by the Florida Bar or similar accredited organization. The plaintiffs claimed in their website and other online materials that the firm specializes in mass-tort and unsafe-product cases. These claims could subject the attorneys to discipline.


The district court found that applying the rule to these plaintiffs effectively prevents the attorneys and law firm from making any claims that they have expertise in mass-tort, unsafe-product cases or personal injury cases generally, “even though the firm undeniably has expertise in these areas”. Since the plaintiffs’ advertising was a lawful form of commercial speech protected by the First Amendment, the district court applied the test enunciated by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y. Under Central Hudson, the government may restrict lawful commercial speech that is not misleading if the governmental interest in restricting the speech is substantial, the restriction directly advances the government’s interest involved, and the limitation is designed carefully to achieve the stated interest.


No Ban on Truthful Statements
The Florida Bar argued that it has two interests in restricting the speech: (1) protecting potential clients from possibly being misled that the plaintiffs are board certified if they are permitted to advertise their expertise in the practice areas; and (2) the possibility that attorneys will self-certify, requiring consumers to engage in extensive research to determine which attorneys have the special training and expertise. The district court rejected both stated interests, because the bar failed to show how these truthful statements were misleading. The court found that the bar also did not demonstrate how the sweeping ban on all statements of expertise solved the potential problems presented. Consequently, the bar’s rules failed to meet the Central Hudson test.


The district court analogized Searcy to the ruling of the Court of Appeals for the Eleventh Circuit in Abramson v. Gonzales. In Abramson, the appellate court found a Florida statute unconstitutional in prohibiting truthful statements made by unlicensed psychologists. The fear that the public would believe the psychologist was licensed is similar to the Searcy case, the district court explained. “The state cannot prevent a person from advertising a lawful specialty, even if the state’s own definition of the specialty is different,” the court stated. The district court in Searcy offered alternatives to outright prohibition of the speech. For instance, the district court offered that the bar could educate the public on the definition of board certification or require the attorney to insert a disclaimer that he is not board certified. Those alternatives are less restrictive than the bar’s approach, explained the district court.


“The court focused on the fact that the attorneys are making truthful statements,” points out Emily J. Kirk, St. Louis, MO, Web & Social Media Editor of the ABA Section of Litigation’s Solo & Small Firm Committee. Even though this case is not binding on other states, in reading this opinion, attorneys must be mindful of the veracity of their statements when advertising, continues Kirk. This case left many questions open as to the vague claims made in the plaintiffs’ advertising, explains Kirk. “The court opined that the plaintiffs obviously had the experience and expertise in the area of law. When advertising, an attorney must be able to substantiate all claims of expertise and specialty,” she cautions.


“The state bar rules are about protecting the consumer. The Bar does not want people to obtain legal services from an attorney holding himself out to be an expert when the attorney has only handled one case,” notes Scott E. Reiser, Roseland, NJ, cochair of the Section of Litigation’s Ethics & Professionalism Committee. On the other hand, Reiser argues, “as a consumer, you want to know as much as possible about the attorney you are hiring. If the attorney is not allowed to advertise about the cases he handles, then how will the consumer be informed?” As long as the advertisements are truthful, there is no harm or problem; it appears that the state bar might have been trying to create a problem in this case, explains Reiser.


After the district court’s ruling in Searcy, the Florida Bar updated its website. The website reported that it “will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers” if the claims are objectively verifiable by the advertising lawyer.


Keywords: ethics, advertising, specialize, expertise, first amendment


 
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