JACKSONVILLE (CN) –The Florida Bar unconstitutionally prohibits “common and innocuous advertising techniques that have no potential to deceive consumers” – such as some “slogans or jingles,” attorney William Harrell Jr. claims in Federal Court.
Harrell says the Bar last year prohibited him from using a slogan it had approved in 2002, and he had used since then. Harrell says the Bar’s prohibition of “commonplace advertising techniques – without which it would be nearly impossible to produce an interesting or effective advertisement – are vague, arbitrary, and contrary to U.S. Supreme Court precedent”.
He says the U.S. Supreme Court has held “that attorney advertising is a form of protected speech that the state can restrict only in furtherance of an important government interest.”
Harrell was admitted to the Florida Bar and is managing partner of Harrell & Harrell, which employs 16 attorneys and “is one of the larger personal-injury law firms representing plaintiffs in the state,” he says. It advertises through print, broadcast and other media. Public Citizen joins him as a plaintiff.
Harrell acknowledges that some of the Florida Bar’s advertising rules “serve the state’s legitimate interest in protecting consumers from false or misleading advertising. Other rules, however, prohibit harmless advertising techniques that are prevalent in the media and that consumers are accustomed to viewing. As to this second category of rules, the Bar has taken the position that any statement that is not both objectively relevant to the selection of a lawyer and factually verifiable is categorically prohibited by the rules. Among other things, the rules contain the following restrictions: a) The rules require that lawyers advertisements ‘provide only useful, factual information presented in a nonsensational manner’ and include no ‘slogans or jingles.’ Florida Rules of Professional Conduct § 4-7.1”.
Harrell objects to several other rules, including the prohibition of “any background sound other than instrumental music … [such as] the sound of sirens or car crashes and the use of jingles”.
He objects as an unconstitutional prior restraint of speech that the Bar rules “require that these advertisements be submitted to the Bar for approval at least fifteen days before they are aired and prohibit submitting lawyers from running the advertisements before obtaining Bar approval.”
Harrell says the Bar prohibited his ad that contained the slogan: “Don’t settle for anything less.” The Bar’s staff counsel informed him that the slogan “could ‘create unjustified expectations about the results the lawyer can achieve.’ However, the Bar also stated that it was approving use of the phrase ‘Don’t settle for less than you deserve’ … as an alternative.” He said he’s used that phrase in ads since 2002.
But in a new ad campaign in 2006, he says, he wanted to feather his “family and dogs … the family-friendly nature of the firm and its charitable contributions” and show its facilities, including “an on-site gymnasium established to promote the health of its employees. However, because of the Bar’s rules against use of scenes, props, background noises, and other standard advertising techniques, Harrell was forced to discard these potential campaigns and instead select a minimalist campaign featuring a black background, instrumental music, and pictures of lawyers from the firm.”
When he submitted the new ads to the Bar in 2007, Harrell says, the Bar objected to the use of the slogan it had approved in 2002: “Don’t settle for less than you deserve.” When he told the Bar that it had already approved the slogan, the Bar “reaffirmed its decision that the phrase violated the rules and that running the advertisement could subject Harrell to discipline.”
The Bar has placed Harrell “an insoluble dilemma” because he’s used the phrase for five years, he says, and the public recognizes the slogan, which the Bar now prohibits. He wants nine of the Bar’s ad restrictions declared unconstitutional. See complaint.