Fla. Bar Can’t Restrict Attorney Advertising

MIAMI (CN) - The Florida Bar cannot restrict attorneys from advertising past results on the radio, television and billboards on claims that such advertising is inherently misleading, a federal judge ruled.

The Bar previously banned references to past success in attorneys' indoor and outdoor advertising as well as in radio and TV ads. It reasoned that such references could mislead potential clients, who might not be able to judge the significance or relevance of past results. The ban did not apply to attorneys' websites or unsolicited emails to prospective clients.

After the Florida Supreme Court asked for additional studies and public comments regarding the advertising restrictions, the Bar revised its rules, allowing attorneys to use past results in all forms of advertising so long as such results are "objectively verifiable." The state's top court adopted the revised rules in January 2013.

According to the 2013 regulations, attorneys must have their ads reviewed by the Bar for compliance, but may begin running the ads before the review is complete.

Relying on the revised rules, South Florida law firm Rubenstein Law developed an advertising campaign that included references to past positive results. The Bar reviewed the firm's TV ads in 2013 and concluded that some of them complied with the most recent advertising rules while others did not. However, some of the ads that did not meet the criteria could be brought into compliance by adding disclaimers, the Bar concluded.

Earlier this year, the Bar added restrictions on advertising past recoveries for clients, specifically targeting references to dollar amounts and aggregated past results. The association claimed the new guidelines were designed to assist lawyers in complying with the revised advertising rules and to avoid misleading advertising.

Subsequently, the Bar withdrew its approval for some of Rubenstein's previously-approved ads. While noting that it did not seek disciplinary action against the firm, the Bar cautioned that failure to comply with the guidelines may result in such action.

Rubenstein sued the Bar in March 2014, claiming the revised rules as enforced by the guidelines violated its free-speech rights, and sought to enjoin the application of the guidelines to its TV ads.

Meanwhile, the Bar found that Rubenstein violated professional rules by continuing to run the ads the Bar had not approved, but ultimately decided not to pursue disciplinary remedies against the firm.

In seeking to dismiss Rubenstein's claims, the Bar argued that its rules do not prohibit attorney advertising and that the guidelines are merely advisory and therefore cannot be challenged as abridging free-speech rights.

U.S. District Judge Beth Bloom disagreed, finding that the guidelines represent the Bar's official interpretation of the advertising rules and are enforced by subjecting attorneys to disciplinary action for non-compliance.

Although the Bar did not go through with its disciplinary action against Rubenstein, it initiated such action when the firm refused to stop running its ads, seeking to enforce the guidelines that completely ban advertising of past results in various media, according to the Dec. 9 opinion.

Additionally, the Bar failed to prove that the restrictions advance legitimate interests such as protecting consumers from deceptive attorney advertising and misinformation. The Bar previously adopted a general ban on advertising past results despite surveys showing that consumers found that more information, including references to past results, would help them select an attorney, Bloom noted.

Moreover, less restrictive guidelines, such as including a disclaimer, may have been sufficient to advance those interests, the court found.

The complete prohibition on attorney advertising referencing past results in indoor and outdoor display, television and radio media is unconstitutional as applied to all attorneys subject to the Bar's authority, according to the 38-page ruling.

The Bar may rethink the guidelines to advance its interests without unnecessary restrictions on attorneys' commercial speech, Bloom concluded.

The Florida Bar repealed the challenged guidelines last week, allowing accurate advertising of past results, including amounts of monetary recoveries.

Bar President Greg Coleman said in a statement that the Bar would reevaluate other portions of its advertising rules, including the mandatory review by the Bar before ads are published or aired.

Coleman said a survey commissioned by the Bar showed that consumers did not consider attorneys' references to past results misleading.

"Basically, a policy decision has been made," Coleman said. "The judge has ruled and we honor Judge Bloom's ruling. From a policy perspective moving forward, unless they are not objectively verifiable, it will be permissible under our existing rules and guidelines [to use past results in lawyer ads]."

The ads, however, must be accurate and free of material omissions, according to the Bar.

Following the repeal, U.S. District Judge Roy Dalton Jr. dismissed a similar challenge brought by another law firm in Orlando, noting that the guidelines are unlikely to be reinstated.

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