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Attorney Advertising in Florida: 11th Circuit Court Loosens Some Restrictions

Attorney advertising firm reports about a recent court decision that will affect lawyer marketing throughout Florida and perhaps beyond.


//Rene Perras/ 10/11/2011

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Changes are in store for attorney advertising in Florida because of a recent Appeals Court decision permanently prohibiting the Florida Bar from enforcing certain advertising rules for lawyers in the state.

Florida has always had some of the most restrictive attorney advertising rules in the nation. While the Bar’s goal of maintaining the image of the legal profession and protecting consumers from unscrupulous tactics by some attorneys may be noble, many view their oversight as overzealous and at times arbitrary.

The story began in 2008 when Jacksonville attorney William H. Harrell, Jr. of the firm Harrell & Harrell, a long time advertiser that promoted the firm’s services in print ads, on his lawyer website and on TV, filed suit against the Florida Bar supported by the nonprofit group Public Citizen.

The suit alleged that the Bar prohibited advertising techniques common to many other industries as irrelevant to a consumer’s decision to hire a lawyer or not factually verifiable and therefore misleading to the public. They further alleged that the restrictions placed on typical advertising methods, such as client testimonials, jingles, tag lines, background sound effects and descriptions of the attorney’s skills necessary to differentiate one law firm from another, were “vague arbitrary and contrary to US Supreme Court precedent holding that attorney advertising is a form of protected speech” and violate an attorney’s First Amendment rights.

All Florida attorneys must follow the Rules of Professional Conduct when crafting attorney advertising and must also submit their proposed ads for review prior to dissemination to the public.  Some of these rules effectively eliminate the essence of advertising, which is to draw distinctions between a law firm and its competition.  The rules forbid the use of “any background sound other than instrumental music,” ads that promise results, compare the quality of a firm’s services to other firms or use “visual or verbal descriptions” that are considered “manipulative.”  Mr. Harrell and Public Citizen contended that the rules in question are vague and offer no real direction as to what would be allowed, therefore resulting in inconsistent enforcement by the Bar.

By way of example, Harrell’s firm had been using the tag line in their ads “Don’t settle for less than you deserve” since 2002.  In 2007 the firm submitted their new ad campaign for Bar approval and the ads were subsequently denied for the exact same tag line because according to the Bar, the phrase characterized the quality of the services offered, in violation of the attorney advertising rules. The exact phrase was approved and used in the past and had been definitively associated with the brand, but now its use would have caused the firm to be disciplined. This finding was upheld on appeal to the standing committee, which is the appeals body of the Bar. Ultimately, it was this decision that forced Harrell & Harrell to seek remedy in court rather than through the final arbiter of the Bar, the Board of Governors.  His 2008 suit claimed that nine of the requirements of the Bar’s attorney advertising rules were unconstitutionally restrictive of his right to free speech and were so vague that they offered little direction and were enforced in an arbitrary manner.  He presented several examples of his own advertising and those of other attorneys to demonstrate how arbitrary the Bar rulings had been.

The district court found that Harrell did not have standing to challenge the rules and issued a summary judgment in favor of the Bar. Harrell subsequently filed his appeal.  The appeals court found that the lower court had ruled in error  and that for several of Harrell’s issues he was entitled to his day in court.

Ultimately the US Appeals Court granted a summary judgment that affirmed some of the lower court rulings, reversed some of the lower court rulings and returned for further review a portion by the lower court.

The court found that the attorney advertising rules that prohibit “manipulative” ads and the requirement that the ads contain only “useful, factual information” too vague and are permanently prohibited from being enforced.  Additionally, the rule prohibiting “any background sound other than instrumental music” violated First Amendment rights and also can no longer be enforced.  The court also found that in this specific case that the Bar’s was wrong and that Harrell’s tag line was not misleading and allowed its use.

The court ruled in favor of the Bar with regard to the rules governing lawyer ads that promise results or characterize the quality of a lawyer’s services finding that they were not unconstitutionally vague.

While this victory represents a great step forward in attorney advertising in Florida, lawyer marketing programs still face challenges and must strive to clearly differentiate themselves from their competition while still working within the Bar guidelines, but more importantly with an eye towards uplifting the profession and finding justice for injured consumers.



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