(CN) - A federal judge tossed The Florida Bar's ban on references to past litigation results in advertisements of attorney services.
U.S. District Judge Beth Bloom held that rules are protected by the 1st Amendment, and that the bar failed to show the prohibition advances a substantial government interest.
"The bar has presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests its rules were designed to promote," Judge Bloom said. "The burden here is the bar's, and it has failed to meet it."
In fact, she said, the record evidence accumulated by the bar actually undermined its position.
"The data collected between 1995 and 1997 toward the 1997 Task Force Report - to the extent probative - showed that consumers wanted more 'useful' and 'factual' information to help them chose an attorney. The supporting survey results explain that large majorities of consumers were interested in attorney 'qualifications,' 'experience,' 'competence' and 'professional record (i.e., wins/losses).'
Later, Judge Bloom said, "Because it chose not to substantively brief the First Amendment issue, the Bar did not articulate which interest or interests the Rules support and promote. If there is no substantial or important governmental interest at play - and, as explained in Harrell, the Court cannot invent one.
"Judgment in favor of Plaintiffs would be mandated on this basis alone," she wrote.
In deciding the case in favor of attorney Robert Rubenstein of Miami, Fla., Judge Bloom noted that 44 states do not pose such restrictions on attorney advertising, and that 5th Circuit recently held, in Public Citizen Inc. v. Louisiana Attorney Disciplinary Board, that a prohibition attorney advertising that touts past results is unconstitutional.
Rubenstein, a personal injury attorney, sought declaratory and injunctive relief blocking enforcement of changes to the Florida Rules of Professional Conduct that went into effect in May 2013. At the time, the bar explained the new rules were necessary because the focus on past litigation victories might mislead consumers.
Earlier this year the bar told Rubenstein to withdraw his ads because they violated the new rules. When he persisted, the bar notified him that it was initiating disciplinary proceedings against him.
Following Judge Bloom's ruling, the bar's board of governors announced it would no appeal the decision, and promptly repealed the guidelines. It said henceforth, the bar would allow advertising based on past monetary results, so long as the figures shown are accurate.
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