Courts

Florida law firm fights new online advertising rules

 

News Service of Florida

A prominent Florida law firm is challenging new state rules regulating attorneys' advertisements on the web, saying the restrictions are a violation of free speech and are too vague.

In a lawsuit filed last week in federal court in Tallahassee, attorneys for the personal-injury firm Searcy Denney Scarola Barnhart & Shipley wrote that the new rules are "so overly broad they would have subjected Abraham Lincoln to discipline for stating, in an 1852 newspaper advertisement, that his firm handled business with ‘promptness and fidelity.’ 

Searcy Denney challenged the rules, adopted by the Florida Supreme Court in January, after The Florida Bar decided that several of the firm's Web pages did not meet the "objectively verifiable" standard required for all advertisements. Searcy Denney requested the Bar's review of the sites before the rules went into effect in May, concerned that the firm would have to spend tens of thousands of dollars to revamp its extensive website, blog and social media.

The new rules for the first time impose the same restrictions on traditional advertising methods, such as billboards or television, and all other forms of communication, including Web pages and social media sites such as LinkedIn and Facebook.

"The framework is designed to avoid lawyers misleading the public," said Elizabeth Tarbert, chief ethics counsel of The Florida Bar Legal Division.

But the rules "make it effectively impossible for Florida lawyers to write articles on blogs, to publish their results in past cases, or to participate in social media sites like LinkedIn, without any evidence that restricting these activities serves any purpose," lawyers representing Searcy Denney wrote in complaint against the Florida Bar and several Bar staff members, including Tarbert.

The rules ban even "garden-variety" statements that can't be proved true, said Gregory Beck, a Washington, D.C.-based lawyer representing Searcy Denney.

"You couldn’t imagine the state reining in a soft drink company claiming their drink is delicious if they couldn't prove that it was true. That doesn't mean that they're misleading. That means that they're opinions. Nobody's going to be able to be misled by them because they don't assert any specific facts," Beck said.

Searcy Denney sought the Bar's opinion on several of its Web pages as well as its LinkedIn profile.

The firm has "32 years of experience handling mass tort cases, resulting in justice for clients in a wide variety of circumstances" and is one of the few firms in the country "to successfully represent" victims of herb supplements, the Web pages state.

That language is "prohibited because it refers to past successes that are not objectively verifiable," Tarbert wrote in a May 7 staff opinion.

The Bar also decided that Searcy Denney’s LinkedIn profile violated the rules because the social networking site automatically listed the law firm's "specialties" and includes an unsolicited testimonial from a client. Under Bar rules, only lawyers and not law firms can state or imply they are certified in special areas.

Nearly all legal ads were banned throughout the country until 1977, when the U.S. Supreme Court ruled that New Mexico's model code prohibiting lawyers' advertisements was an unconstitutional violation of First Amendment rights.

In 1999, Florida became the first state to adopt rules regarding web advertisements. But over the past decade, the Bar has wrestled with the issue, and the Court and the Bar have had a drawn-out dispute over how to handle advertising in the digital age.

The old rules placed restrictions on specific types of advertising but exempted information provided upon request of a prospective client. The rationalization was that less restrictive measures were acceptable when a client was seeking the information rather than receiving it in a short television or radio ad. Federal courts have ruled twice that portions of the Florida rules were too restrictive.

The Florida Supreme Court rejected a 2009 proposal from the Bar that would have imposed restrictions on attorneys' home pages but exempted all material on other pages linked to the home page. That would have allowed lawyers to include statements characterizing the quality of legal services, information regarding past results and testimonials --- all prohibited under the lawyer advertising rules then in place --- on the web.

The Court offered a "two-click" alternative that would have required any individual accessing information behind the home page to complete at least two steps, or two clicks, before accessing information otherwise prohibited by the lawyer advertising rules. The Bar rejected that proposal.

The overhauled rules approved by a divided Supreme Court this year treat both information upon request and Internet websites as advertising.

The majority dismissed opponents' arguments that the requirement that certain statements made in attorney advertisements must be "objectively verifiable" was unclear.

"We disagree. If the attorney can show, by objective facts, that the statement is true, then he has presented an objectively verifiable statement in the advertisement. On the other hand, making a subjective statement such as 'the best trial lawyer in Florida' is a misleading statement that fails to meet the requirement because it is neither objective nor verifiable," the majority opinion reads.

But in a dissent, Justice Barbara Pariente objected to the "one-size-fits-all approach" and wrote including websites in the advertising restrictions "has the potential to result in a chilling effect."

Websites offer "most of the benefits and none of the hazards that are endemic to advertisements on television, radio, billboards, buses, taxis, and benches," Pariente wrote. "A lawyer or law firm's use of a website allows for the conveyance of complete and meaningful information to potential clients, unlike the shorthand versions seen in the other media."

In a separate dissent, Justice Charles Canady wrote that the proposed rules are "unduly restrictive."

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