Why Judge Won’t Dismiss Lawsuit Against Florida Bar Over Advertising Rules

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What type of advertising is too extreme?   Is reporting your past verdicts or settlements misleading? Should lawyers be able to advertise in any form or fashion and give out information that isn’t always truthful?  I am not sure where I fall on this issue.  I know that the Florida Bar is extremely strict on what you can use to advertise to potential clients but that some firms ignore those rules and use whatever they want to advertise until the Bar tells them to take it off the air.  I know other firms, like ours, try to play by the rules but many times the rules are constantly changing.  Consequently, I found this case extremely interesting.

A federal judge denied summary judgment to the Florida Bar in a lawsuit filed by a personal injury law firm over the state’s strict lawyer advertising rules.  The case is one of three brought by law firms against the Bar in Florida’s three federal districts attacking Bar regulation of lawyer advertising.The Bar overhauled the rules with a new focus on online content, and the changes were approved May 2013 by the Florida Supreme Court.  The rules, which regulate attorney websites, social media, print advertising and commercials, are widely considered the most stringent in the country. Personal injury lawyers in particular are upset at the rules, which prevent use of past results such as verdicts.  The Bar amended its rules a year ago by issuing “Guidelines for Advertising Past Results,” which barred any mention of law firm results in commercials. The rules continued to allow past results in other forms of media, but they now require net verdict or settlement amounts, which may include medical expenses, as well as a disclaimer reading “most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.”

In March, Miami’s Rubenstein Law, a personal injury firm, filed suit against the Bar in the Southern District of Florida after submitting ads for Bar review under the new rules.  In January, the Bar revoked its prior approval of Rubenstein’s commercials based on the amendment, according to the firm’s lawsuit. The Bar gave Rubenstein Law 30 days to stop running its commercials. The lawsuit alleged the Bar violated the First Amendment.

“The Florida Bar has no evidence to support its assertion that ‘past results in advertising carries a particularly high risk of being misleading,’ ” states the suit. “The prohibition conflicts with the Florida Bar’s previous determination that consumers consider a lawyer’s past results as one of the most important factors in choosing an attorney.”  The suit also alleged the Bar is discriminating against commercials by drawing a stricter line for them and the amended rules regulating the wording about dollar amounts violates the First Amendment.  In its motion for summary judgment, the Bar challenged the court’s jurisdiction over the case on standing and ripeness.  On Nov. 20, U.S. District Judge Beth Bloom in Fort Lauderdale denied the motion, stating the First Amendment claims demonstrating a threat of prosecution set a “low threshold.” She noted the Bar had opened a disciplinary file against Rubenstein, which it closed less than an hour before the motion was filed.  “The bar’s last-minute tactic to close the disciplinary case against plaintiffs does not undermine plaintiff’s standing,” the ruling said. “Plaintiffs have clearly demonstrated a very real threat of prosecution for engaging in their advertisement of past results.”

‘Changed Course’

The other two cases against the Bar are pending. The first was filed in the Northern District of Florida by West Palm Beach law firm Searcy Denney Scarola Barnhart & Shipley last December.  Searcy Denney filed the Tallahassee lawsuit after submitting its website, blog and LinkedIn pages to the Bar for an advisory opinion. The Bar objected to all versions, including partner Greg Barnhart’s resume listing every case he has tried for more than $1 million. The Bar stated such information was not “objectively verifiable.”  That suit survived a Bar motion to dismiss.

The third lawsuit was filed by the West Palm Beach personal injury law firm Steinger Iscoe & Greene in March in the Middle District of Florida. Like Rubenstein Law’s case, Steinger’s suit alleges the Bar withdrew a previous ethics opinion based on amended advertising rules for commercials.  Steinger, which is represented by Beck and Tallahassee attorney David Frank, alleges the Bar is discriminating against television and radio ads by applying tougher regulations.  Following adoption of the new rules, Steinger invested “a significant amount of money” developing an advertising campaign that featured actual clients discussing their cases and recoveries. The Bar approved the ads, states the suit. As was the case with Rubenstein, the Bar “changed course” and revoked its approval.  Steinger is asking the court to declare the Bar guidelines for commercials unconstitutional.

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