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Court Strikes Florida Rule Preventing Advertising of Past Results

By Pamela Sakowicz Menaker, Litigation News Contributing Editor – April 6, 2015

 

A Florida lawyer can advertise his past results and a state ethics rule banning the attorney statements is unconstitutional. Rubenstein v. The Florida Bar.


The U.S. District Court for the Southern District of Florida joins a majority of states holding that state bar rules that completely prohibit attorney advertising of past results violate the First Amendment.


Florida Attorney Advertises Past Successes
A Florida attorney developed an advertising campaign that featured information regarding past recoveries for clients. In an animated television commercial, with a person speaking, the words appeared: “COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each.”


Under Florida’s rules, all ads must first be screened by the Florida bar for approval. In response to the ads, the Florida Bar issued an opinion stating that a portion of the attorney’s ads complied with ethics rules, but the reference to past results did not based on a prohibition against advertising past results. After its initial opinion, the bar issued a withdrawal letter stating that all of the advertisements violated Florida’s ethics rules and threatened to discipline the law firm. The attorney continued the ad campaign and brought a lawsuit in the Florida district court claiming that the rule violated his right to free speech. The Florida bar argued that the rule complied with First Amendment law because it protected the consumer from misleading ads.


Court Follows Majority of Other States
The district court rejected the Florida bar’s position, granted the plaintiff law firm’s motion for summary judgment, and entered an order enjoining the enforcement of Rules 4-7.13 and 4-7.14. The district court found that “[t]he Bar presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests its Rules were designed to promote.” The court characterized the bar’s attempt as “naked paternalism” that does not justify a complete ban on a lawyer’s publication of truthful information.


The decision follows a similar ruling by the Fifth Circuit in Public Citizen Inc. v. Louisiana Attorney Disciplinary Board, which held that different levels of commercial speech “merit different levels of protection.” The Rubenstein court found Public Citizen to be “directly on point” and agreed that lawyers can present past results in a manner that is not misleading, particularly if promises are not made.


In support of its ruling, the district court noted that 44 states allow advertising on prior results. Missouri, New Mexico, New York, South Dakota, Texas, and Virginia do not. “It seems to me that the Florida bar was probably trying to swim against a strong current the way the current is flowing in America today,” says Neil Lloyd, Chicago, IL, former cochair of the Legislation Subcommittee of the ABA Section of Litigation’s Ethics & Professionalism Committee.


Public Access and Public Choice
“The Florida bar was trying to protect the public from thinking you can run into the courts and get a bunch of money. It’s not that the consumer isn’t bright enough to figure it out, but it’s more along the lines of those who don’t use legal services on a regular basis don’t know what that figure means in terms of their own case,” says Adrian K. Felix, Miami, FL, the Young Lawyers Division representative to the Section of Litigation and vice chair of the Section’s Young Advocates Committee.


Other leaders have noted that consumers may view such advertisements as a path to an attorney, but they do not rely upon them solely in choosing an attorney. “Selecting an attorney, particularly a personal injury attorney following a traumatic accident, may be a once-in-a-lifetime decision, so you are going to call and do more research in this age of technology and over-information,” says Lloyd.


Today’s Age of Technology
Felix also points out that the court’s decision may reflect trying to keep the rules in line with “how things are changing.” “In 1977, when Bates was decided, we didn’t have social media platforms so the advertising then was very different than it is today,” notes Felix. Other lawyers believe the district court was right to allow promotion of information because “it’s good that lawyers can talk about past results so clients can make better decisions,” says Michael P. Downey, St. Louis, MO, chair of the Rules and Regulations Subcommittee of the Section’s Ethics & Professionalism Committee.


“It’s not whether the plaintiff trying to select legal counsel is fully informed about the nits and twists of ‘X’ lawyer,” says Lloyd. “The plaintiff is not asking is she a terrific cross examiner? That would require legal skill and training. The standard for whether an advertisement is misleading is not the same standard you would apply if you were in a legal malpractice case: Did this lawyer’s conduct meet the standard of care? The ad starts a conversation and it is still more valuable than no information at all,” Lloyd adds.


Bottom Line for Lawyers Who Advertise
Advice to Florida lawyers—as well as to all lawyers who advertise—is summed up by Downey: “I always tell lawyers you shouldn’t put in an ad what you wouldn’t put in an affidavit. Put it to a rigorous test yourself. Don’t claim things you can’t support. It must be objectively verifiable, so make sure what you put in the ad you can defend before disciplinary counsel.” “Zealous advocacy—that’s what we want out of lawyers. So long as it’s not misleading, it’s helping people become informed consumers,” adds Lloyd.


Keywords: attorney advertising, First Amendment, ethics, advertising and technology


 
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