Saturday, February 2, 2013

Understanding The New Florida Bar Advertising Rules, If That's Possible

There's new advertising rules for Florida Lawyers. They're available in this 53 page opinion released by The Florida Supreme Court this week.

Don't worry, you don't have to read 53 pages of a legal opinion, I'll help you with this.

From the Court: the Bar concluded that the existing lawyer advertising rules should be entirely restructured, focusing primarily on preventing the dissemination of misleading and unduly manipulative information.

But what about simply "manipulative information?"

Moving on...

And don't worry, like any rule change proposal: The proposals are designed to make the advertising rules more cohesive, easier for lawyers who advertise to understand, and less cumbersome for the Bar to apply and enforce.

Easier, less cumbersome. Of course.

So here we go:

Rules 4-7.1 through 4-7.10 are deleted. Gone. Poof.

We now have:

4-7.11 (Application of Rules);
4-7.12 (Required Content);
4-7.13 (Deceptive and Inherently Misleading Advertisements);
4-7.14 (Potentially Misleading Advertisements);
4-7.15 (Unduly Manipulative or Intrusive Advertisements);
4-7.16 (Presumptively Valid Content);
4-7.17 (Payment for Advertising and Promotion);
4-7.18 (Direct Contact with Prospective Clients);
4-7.19 (Evaluation of Advertisements);
4-7.20 (Exemptions From the Filing and Review Requirement);
4-7.21 (Firm Names and Letterhead);
4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).

If you're keeping count, and I do, we now have 12 rules instead of 10.

We also introduce the new term "objectively verifiable" in Rules
4-7.13 and 4-7.14


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 advertising statement must be supported by verifiable facts.

So you can't say you are awesome, unless it can be verified. But can you then just list your past success? That's verifiable.

Well... as long as the past results are not:

atypical of persons under similar circumstances.


A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client's actual damages, is also misleading.

So is the Bar still staying away from the internet?

This subchapter applies to all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail , electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video  sharing media.

So now you can't use the internet as a haven for deception. What will the marketers do?

Also: This subchapter applies to communications made to referral sources about legal services.

"Communications?" So I can't get drunk with a referral source and say things that are not "objectively verifiable" The bartenders lobby should have been all over this one.

This is a requirement that may strike fear throughout the Bar:

Any information required by these rules to appear in an advertisement must be reasonably prominent and clearly legible if written, or intelligible if spoken.

And you lawyers that take the case and send it to another lawyer to do the work?

Ut oh.

If the advertising lawyer knows at the time the advertisement is disseminated that the lawyer intends to refer some cases generated from an advertisement to another lawyer, the advertisement must state that fact. An example of an appropriate disclaimer is as follows: 'Your case may be referred to another lawyer.

While trying to prevent "Deceptive and Inherently Misleading Advertisements," is admirable, this part of the rule will be fun to litigate:

An advertisement is deceptive or inherently misleading if it:

(3) implies the existence of a material nonexistent fact.

Like me, do you often get annoyed when people are being...wait, let me get this right... deceptive and misleading by implying the existence of a material nonexistent fact?"

Here's an example of an implied existence of a material nonexistent fact:

Another example of the implied existence of a nonexistent fact is a statement in an advertisement that a lawyer is a founding member of a legal organization when the lawyer has just begun practicing law. Such a statement falsely implies that the lawyer has been practicing law longer than the lawyer actually has.

So young lawyers, don't be self starters. Don't "found" anything and advertise it to anyone. It's misleading, apparently.
You can say (even if it's not true) that you are:

aggressive, intelligent, creative, honest, or trustworthy.

You cannot say that you are:

"the best," "second to none," or "the finest."

You can use the words:

"goal," "dedicated," "mission," and "philosophy."

And your precious testimonials?

Testimonials by clients on these matters, as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible.

Now let's talk about Potentially Misleading Advertisements.
This is a pretty clear standard (there's still not a font for sarcasm?)

(1) advertisements that are subject to varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context;

(2) advertisements that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;

(3) references to a lawyer's membership in, or recognition by, an entity that purports to base such membership or recognition on a lawyer's ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria, and that includes among its members or those recognized a reasonable cross-section of the legal community the entity purports to cover.
Ok. I'm going to just move on from that one before my head explodes.

But before I do, just know that even if your ad is potentially misleading:

Clarifying Information.

A lawyer may use an advertisement that would otherwise be potentially misleading if the advertisement contains information or statements that adequately clarify the potentially misleading issue.

Now that we all understand Deceptive and Inherently Misleading Advertisements and Potentially Misleading Advertisements, let's talk about....

A lawyer may not engage in unduly manipulative or intrusive advertisements. An advertisement is unduly manipulative if it(and I'll summarize this:

images, sounds, videos, dramatizations, authority figures such as a judge or law enforcement officer, or an actor portraying an authority figure, voice or image of a celebrity, except that a lawyer may use the voice or image of a local announcer, disc jockey or radio personality who regularly records advertisements so long as the person recording the announcement does not endorse or offer a testimonial on behalf of the advertising lawyer or law firm... to mention a few.

This of course is my favorite part:

Notice of Compliance and Disciplinary Action.

A finding of compliance by The Florida Bar will be binding on The Florida Bar in a grievance proceeding unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement. The Florida Bar has a right to change its finding of compliance and in such circumstances must notify the lawyer of the finding of noncompliance, after which the lawyer may be subject to discipline for continuing to disseminate the advertisement.

I wonder what happens if the Bar files a complaint, the ad was found to be in compliance, and then after the complaint is filed the Bar revisits its finding? The word "after" seems ripe for litigation.Those of you who use those cheesy referral services need to read 4-7.22, and read it carefully - specifically section (b).

So there you go, easier, less cumbersome, or as Justice Canady said: I am persuaded that the proposed rules remain unduly restrictive.

I'm reminded of the time I was at a conference listening to the head of the Florida Bar Ethics Department talk about lawyer advertising. I asked why we couldn't just simplify the rules. The response: "why don't you help us do that?"
I wrote "4-8.4 - nothing false, misleading, or deceptive" on a napkin and handed it to her.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of Defending The Lawyer Before The State Bar Share/Save/Bookmark

1 comment:

Jeff Gamso said...

I think your apparent effort to quote Pliny the Elder is potentially misleading and not objectively verifiable. Did Pliny the Elder say that "nothing is certain"? I don't think you can prove he spoke English.

Were I the sort of person who would do that sort of thing, (not an excellent person, of course, because I don't want to be unverifiably leading) I might be tempted to file a bar complaint against you.