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Tuesday, January 12, 2010

Will this post get me disbarred?

The Florida Bar has a new attorney advertising rule that aggressively regulates attorney speech on the Internet.  Florida Bar Rule 4-7.6  Indeed, the new rule regulates attorney speech so aggressively that it might even apply to this blog post.  Until recently, the Florida Bar considered all attorney websites and web communications as information provided upon the request of a prospective client and did not apply its attorney advertising rules to them.  But now the Florida Bar has extended its substantive advertising rules except for its filing requirement to all "Computer-Accessed Communications" by Florida attorneys. 

The first problem with the new Bar rule is its exceeding broad definition of "computer-accessed communications" as "information regarding a lawyer's or law firm's services that is read, viewed, or heard directly through the use of a computer."  The definition includes "but [is] not limited to, websites, unsolicited electronic mail communications, and information concerning a lawyer's or law firms' services that appears on Internet search engine screens and elsewhere."  Under that definition, if I write in this post that I'm a defamation expert, I'm giving you information regarding my services, and I could be subject to reprimand, suspension, or disbarment if I don't meet the substantive requirements of the Florida Bar's advertising rules.  Rule 4-7.6(d).  What are those substantive requirements? 

The substantive rules provide, among other things, that an attorney website can't "describe or characterize the quality of legal services being offered."  Rule 4-7.2(c)(2)  Thus, I can't tell you in this post that I'm committed to using my legal skills to provide positive results for my clients (even though this is true).  And I can't give you information regarding my past results, so I probably shouldn't tell you the true information that I lost a case I argued in a Florida court as cooperating counsel for the ACLU in a "John Doe" case.  Rule 4-7.2(c)(1)(F).  I also can't include testimonials; therefore, I request any former students or clients not to post comments saying what a wonderful lawyer and/or professor I am.  Dramatizations and many other creative marketing devices are also verboten.  Of course, my personal concerns about the new bar rules are trivial when set beside those of all the Florida law firms who must now spend vast sums of money to revamp their websites to try to comply with the new rules, not to mention the concerns of non-Florida firms that hire Florida attorneys. 

 In its zeal to rid the airwaves and the Internet of distasteful attorney advertising, Florida seems to have lost sight of some basic principles of First Amendment law.  The First Amendment protects attorney advertising because it provides valuable information to potential clients to help them make informed and rational decisions.  States may regulate attorney advertising if it is actually or inherently misleading, or if regulation directly and materially advances a substantial state interest and is no more extensive than necessary to accomplish that interest.  The US Supreme Court has very clearly held that a state may not base regulation of attorney advertising on its concern for preserving attorney dignity or on its paternalistic desire to withhold information from consumers that is merely potentially misleading in some abstract sense.

Equally troubling is that Florida seems to have lost sight of whom attorney advertising results are supposed to protect, namely, consumers of legal services.  Consumers' interests in learning about their legal rights and the range of legal services available to them are not served by paternalistic regulations designed to prevent them from receiving truthful and non-misleading information that they have sought to obtain.  In adopting its new rule, the Florida Bar provided no evidence that consumers have been harmed by its prior practice of treating attorney websites as information provided upon request of a potential client.  And the rule is not even effective at "protecting" Florida consumers from being exposed to dramatizations or testimonials or the like; it just "protects" them from being exposed to these advertising techniques by Florida lawyers, leaving them at a competitive disadvantage vis-a-vis out-of-state lawyers and non-lawyer competitors.  Consumers interests are ill-served by a regulatory scheme that is totally out of touch with how modern consumers access information.  I could go on in this vein, and have, at length, in an article Tera Jckowski Peterson and I wrote while these new advertising rules and more were still at the proposal stage.  If you're still interested, see  Attorney Advertising Article

Posted by Lyrissa Lidsky on January 12, 2010 at 02:12 PM in Constitutional thoughts, First Amendment | Permalink


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Posted by: Trevor Wilson | May 3, 2010 8:29:50 AM

I had similar reactions to a change in the NY lawyer advertising rules a few years ago: http://prawfsblawg.blogs.com/prawfsblawg/2007/03/bruce_boyden_do.html

Posted by: Bruce Boyden | Jan 13, 2010 10:01:09 AM

Hard to imagine that the public isn't well-served by these rules. ::cough, cough::

Posted by: Admiral | Jan 12, 2010 11:22:36 PM

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