Oh, Florida. So many things to love about the Sunshine State, and so much that is confounding. And I’m not just talking about mosquitoes and the novels of Carl Hiaasen.
What to make of the persistence of Florida’s byzantine system of attorney advertising regulation? Despite the well-recognized first amendment right of attorneys to advertise, despite 30 years of federal decisions narrowing the scope of the “commercial speech” doctrine, and despite the explosion of technology and social media communications over the last 10 years, Florida has doggedly pursued a stifling regime of control over attorney speech.
Five years ago, the Florida Bar undertook an effort that, while modest, sought to loosen up some of the rules. Websites, for example, would be considered “information provided at a client’s request” and would thus be exempt from most of the rules. That makes sense, right? Websites aren’t intrusive advertising, they level the playing field between competitors, and they offer almost limitless space to provide consumers with information.
Sadly, the Florida Supreme Court would have none of it. They sent the Bar back to the drawing board, and proposed their own, incredibly intrusive, system of regulation for websites. Met with howls of protest from firms statewide, the Court went through a number of iterations before issuing today its order approving a whole new set of advertising rules.
Unfortunately, instead of taking the opportunity to scrap many of the detailed rules and bring the rest into the modern age, the Court adopted rules that retain all of the excesses of the old system while creating new restrictions on attorney speech. Here are some of the lowlights:
- All communications, including websites, are now subject to the rules. That may seem no big deal – until you’ve seen how detailed and specific the rules are. There’s a huge difference between billboard advertising and websites or brochures mailed to potential clients.
- Advertisements must still be pre-cleared by the Advertising Committee. Florida attorneys will continue to have to pay $150 and wait at least 20 days so that a committee – which may include your competitors – decides whether your ad complies with the rules (mercifully, websites are exempt from the review requirement).
- Restrictions on solicitation continue to be among the most restrictive in the nation, going well beyond the “in-person, telephonic or real-time electronic” formulation of the ABA model rules. Helpfully, these rules continue to call out a restriction on solicitations via telegraph (while being silent on social media).
- The rules deem misleading a host of commonplace advertising techniques, including dramatizations, sounds and “puffing” statements. What’s more, they deem misleading the use of “words or phrases that characterize a lawyer’s or law firm’s skills, experience, reputation or record, unless such characterization is objectively verifiable.” That’s fine in many contexts, but it’s far too sweeping. When substantiation is required for statements that are difficult to measure – and this rule would apply to ALL information in a lawyer’s website – the results is naturally going to be that consumers get less information.
Does lawyer advertising sometimes overreach? Is it occasionally cheesy, or embarrassing to many other practitioners? Of course it is. But it’s even more true that consumers of legal services face an industry that, despite the efforts of Avvo and others, remains startlingly opaque.
The Federal Trade Commission has long complained to the state bars (including Florida) that their cumbersome systems of advertising regulation are both constitutionally suspect and work at cross-purposes to getting consumers more information about legal services. As recently as a week ago, the FTC reiterated its concerns with rules much like these. Unfortunately, the Florida Supreme Court still hasn’t gotten the message.