Searcy Denney Scarola Barnhart & Shipley and its five named partners sued The Florida Bar and four of its top officers, in Federal Court.
The partners claim the restrictions are unconstitutionally vague – in fact, that they are ridiculous: “Florida’s rules are so broad that they would have subjected Abraham Lincoln to discipline for stating, in an 1852 newspaper advertisement, that his firm handled business with ‘promptness and fidelity’ – two words that are no more ‘objectively verifiable’ than those the Bar concludes violate its ethics rules here.”
The law firm and its partners – Christian D. Searcy, Earl Denney Jr., John Scarola, F. Gregory Barnhart, and John Shipley – have offices in Tallahassee and West Palm Beach. Its website, searcylaw.com, contains “thousands of pages of information about the firm and its cases, a newsletter, press releases, and a blog devoted primarily to legal issues affecting Florida consumers,” the partners say in the lawsuit. They also have accounts on Facebook, LinkedIn and Twitter, and advertise in print and on TV, competing with other law firms in Florida and other states.
“For decades, the Florida Bar has stood apart from the rest of the nation in the restrictiveness of its rules governing lawyer advertising,” the partners say in the complaint. “The rules prohibit a range of common advertising of the sort that lawyers in other states use as a matter of course and that poses no risk of misleading consumers. But until recently, lawyer websites were exempt from these prohibitions. As long as they complied with the general restriction on false and misleading advertising, Florida lawyers could set up websites, publish blogs, and participate in popular social-media sites like LinkedIn, Facebook, and Twitter without fear of professional discipline.
“That has now changed. Under amendments that became effective earlier this year, websites are subject for the first time to all of the rules’ restrictions. Just how far these restrictions go in restraining lawyers’ speech is shown by their application to the plaintiff law firm here, Searcy Denney Scarola Barnhart & Shipley PA. According to the Bar, Searcy Denney’s website and blog violate a rule requiring statements to be ‘objectively verifiable’ because the websites express opinions on issues of public concern, including statements that the days ‘when we could trust big corporations … are over,’ that ‘[g]overnment regulation of … consumer safety has been lackadaisical at best,’ and that ‘when it comes to “tort reform” there is a single winner: the insurance industry.’ The Bar also found garden-variety statements about the firm’s services and past cases to be ‘inherently misleading’ because the statements do not include all ‘pertinent’ facts of each case, while at the same time refusing the firm’s requests to clarify what facts the Bar considers pertinent. And it concluded that the firm’s pages on the social-media site LinkedIn.com violate several of the rules’ provisions because – among other things – LinkedIn automatically lists the firm’s ‘specialties’ and includes an unsolicited review posted by a former client.”
The law firm seeks declaratory judgment and wants the Bar enjoined from enforcing the rules.
They are represented by Richard Burton Bush, with Bush & Augsburger, of Tallahassee, and by Gregory Beck, with Gupta Beck, of Washington, D.C.
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