Florida Law Firm Challenges New Advertising Rules

Florida law firm Searcy Denney Scarola Barnhart & Shipley PA filed suit in federal court on December 10 against the Florida Bar over the new advertising rules, which became effective on May 1, 2013 and subject all websites, including blogs and social networking sites to the advertising rules. The complaint alleges that the rules violate the First Amendment right to free speech and are unconstitutionally vague.

The firm’s complaint revolves primarily around Florida Rule of Professional Conduct 4-7.13, and, in particular, the “objectively verifiable” standard the rule requires when lawyers mention past results and statements that characterize skills, experience, reputation, or record, as part of advertisement.

Before the new rules were adopted, the firm sought guidance from the Florida Bar as to whether the thirteen pages submitted from its website, blog and LinkedIn account are generally in compliance with the new rules’ requirements and specifically whether the various statements on these pages meet the “objectively verifiable” standard. The Bar found a number of violations of the objectively verifiable standard, including “garden-variety statements” concerning the firm’s services and references to previous cases, which were deemed to be “inherently misleading” because the statements failed to include all “pertinent” facts of each case. The firm appealed to the Standing Committee on Advertising, but after considering the pages on three occasions, the Committee affirmed the Florida Bar and the law firm ultimately filed suit.

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In its complaint, the firm alleges that when the Bar’s Board of Governors proposed that statements of quality and past results be allowed only when “objectively verifiable,” it gave no reason for the unprecedented restriction; it did not identify any evidence that the limit serves a valid purpose; and it did not examine whether it made sense to apply the rule to information that is affirmatively sought out by clients, such as that found on websites, blogs, and social media. The firm further alleged that “[i]n extending its advertising regulations to websites, the Bar has failed to meet its burden of showing that its restrictions are necessary to protect consumers.” The firm also alleged that the lack of guidance about what speech is permitted under the new rules invites arbitrary and discriminatory enforcement and that it is unconstitutionally vague, as it “fails to provide lawyers with a reasonable opportunity to know what is prohibited or Bar officials with explicit standards for enforcement.”

Whether the rules pass constitutional muster is yet to be determined, but complaints of this type demonstrate the difficulties that arise in applying traditional legal ethics rules to advertising on evolving forms of online communication.

Click here to read more about the lawsuit. Click here to read a previous article that suggests that this type of litigation was inevitable.

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