Florida recently amended its rules regulating lawyer advertising. Which sounds good, considering their advertising rule-making track record.
The new rules are more of an overhaul than an amendment. The purpose: 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 invite you to judge for yourself whether they accomplish these goals. Down the legal ethics rabbit hole we go.
IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR—SUBCHAPTER 4-7, LAWYER ADVERTISING RULES.
Since the Court deletes all the existing rules in Subchapter 4-7 and adds entirely new rules, I’m not going to reproduce all the new rules here.
I encourage you to go read the entire Opinion. I also encourage you to read both dissents. Especially Justice Canady’s, who concludes that the rules remain unduly restrictive.
Here are some quick bullets on some of the changes:
- New numbering system – The changes are substantial. A new numbering system is needed to avoid confusion.
- Use of government title – Use of a judicial, executive, or legislative branch title by current, former, or retired official who is currently engaged in practice of law is not inherently misleading if accompanied by clear modifiers and is placed after the person’s name. Example provided: a former judge may not state “Judge Doe (retired)” or “Judge Doe, former circuit judge.” However, she may state “Jane Doe, Florida Bar member, former circuit judge” or “Jane Doe, retired circuit judge.”
- The Objectively Verifiable Standard – If statement can be verified by objective facts, it’s ok. Subjective statements like “best trial lawyer in Florida” is misleading and is neither objective nor verifiable.
Cool, examples. Feels like California.
A Little Help From Our Friends
Including comments, The Appendix containing the new rules is 36 pages long. If you’re not convinced that these new rules more cohesive and easier for lawyers who advertise to understand, don’t worry, you’re not alone. Fortunately, over at My Law License, Brian “Pliny” Tannebaum helps us understand. He also offers an alternative (which I like too):
“4-8.4 – nothing false, misleading, or deceptive”
PaperStreet’s Peter Boyd (curmudgeon disclaimer: who is also a member in good standing with The Florida Bar) provides his own review of the rule changes (long version here). While I disagree with Pete that the rules are easy to follow, he does raise some interesting issues related to social networking. For example:
We called the Florida Bar Hotline number (850-561-5780)and asked about social networking posts. Per Florida Bar, every Tweet must include the name of the lawyer, law firm and office address! Every Facebook post also needs to have that info, according to the Florida Bar. So, if you have a long name, longer firm name, and have an office on a long street, you probably can Tweet about 20 to 50 characters of the 140 character limit. Fun!
A prohibition on false, misleading, or deceptive communications seems to me to be the route to go. But I struggle with objective vs. subjective issue (I’m dodging manipulative here for the moment). I tried, perhaps inarticulately, to raise this issue after the Horace Hunter ordeal.
Isn’t advertising a form of communication used to persuade an audience (viewers, readers or listeners) to take some action with respect to products, ideas, or services. To call public attention to especially by emphasizing desirable qualities so as to arouse a desire to buy or patronize; to promote?
And isn’t to persuade to cause someone to do or believe something through reasoning or argument? To convince?
When the Florida Court struck down the limits on lawyer advertising in 2011, I was hoping this issue was going to be addressed head-on:
Judge Howard largely sided with Harrell, including his objection to the state prohibition on “manipulative” ads. “The term ‘manipulative’ is so vague that it fails to adequately put members of the Bar on notice of what types of advertisements are prohibited,” the judge wrote, declaring the standard void. The judge likewise struck down the ban on background sounds, concluding the rule violates Harrell’s free speech rights.
Harrell applauded the ruling. “The bar rules were so vague, you couldn’t understand what they meant,” he told the Law Blog. “An ad can’t be manipulative? What does that mean? By definition, advertising to some degree is designed to persuade and manipulate.”
(emphasis added by me)
And perhaps it has been addressed in Florida.
In Florida, it seems that the only permissible advertising is a statement of objectively verifiable facts. For example, while illustrations that are informational and not misleading are permissible (scales of justice, map, picture of lawyers, photograph of a car that has been in an accident), illustrations that are unduly manipulative are not:
For example, a dramatization or illustration of a car accident occurring in which graphic injuries are displayed is not permissible. A depiction of a child being taken from a crying mother is not permissible because it seeks to evoke an emotional response and is unrelated to conveying useful information to the prospective client regarding hiring a lawyer. Likewise, a dramatization of an insurance adjuster persuading an accident victim to sign a settlement is unduly manipulative, because it is likely to convince a viewer to hire the advertiser solely on the basis of the manipulative advertisement.
Oh good, let’s encourage lawyers to use more scales of justice.
I’d like to see Carolyn’s ethics bot handle the distinction between a permissible car accident photo and an unduly manipulative one. Forget the robot, I’d like to see human panels make this distinction. I guess they’ll know it when they see it.
And what about stars and ratings?
Objectively verifiable? Unduly manipulative? I know they evoke an emotional response from me unrelated to conveying useful information… Are lawyers going to be forced to subpoena Avvo’s secret-sauce to defend their use of ratings on their sites?
It occurs to me that Florida is trying to make an advertising analogue to their rule of evidence 90.403. I would be curious to know what typically gets tossed under 90.403. Is it applied liberally or conservatively? Are images that evoke an emotional response commonly tossed?
Well Florida web designers, you’re in luck. A whole lot of work was just created for you in fixing a ton of Florida lawyer websites.
Clearly, lawyers shouldn’t be permitted to lie. But, with regard to communications about their legal services, should they be permitted to convince, influence and persuade through subjective means?
So are these new rules more cohesive, easier for lawyers who advertise to understand and, less cumbersome for the Bar to apply and enforce? I don’t think so.
While I wouldn’t call these rules good, I must concede that they’re better than the old Florida rules. But who cares what I say, who wants to take ’em to SCOTUS?