19 Dec

Court takes up lawyer ad rules

first_img Court takes up lawyer ad rules July 1, 2006 Regular News Jan Pudlow Senior Editor Holding up a law firm’s mailed brochure bragging about multi-million-dollar recoveries in products liability cases, complete with color pictures of crashed automobiles, Justice Charles Wells asked: “Are the rules presently, and as amended, intended to allow this type of advertisement? Who is it allowed to go to and why?”So began the nearly hour-long oral arguments June 7 in Rules Regulating The Florida Bar — Advertising Rules (Case No. SC05-2194). The topics ranged from the Bar’s most significant change in its petition — to require review of all radio and television ads before broadcasting — to the vexing question about how to regulate Web sites that about 40,000 Florida lawyers now use to tout their expertise. Pop-up ads popped up in oral arguments, too.The Board of Governors, in April 2005, adopted most of the recommendations of the Advertising Task Force 2004, appointed by then Bar President Kelly Overstreet Johnson, with two exceptions: Web sites and review of TV and radio ads.Back to old-fashioned mailed advertising, Wells said he assumed that he received the brochure a week earlier because he is a member of the Bar. That sparked his “overriding concern” that “no one be given a competitive advantage by the rules of discipline, and that includes advertising.”Bar Ethics Counsel Elizabeth Tarbert answered: “You do receive those brochures because you are a member of The Florida Bar. There are lawyers that will purchase lists from The Florida Bar of all Bar members in a particular circuit and send out pamphlets like the one you just displayed.”Current rules and the comment to Rule 4-7.1, Tarbert said, exempt advertising communications between lawyers and from lawyers to former and present clients from the rules that otherwise would not allow touting past results to the general public. The rationale, she explained, is because once clients choose a lawyer, the lawyer is known to them and therefore such advertising is unlike a cold call.“That certainly gives a big advantage to people who have been in the practice for 20 years, rather than someone who has been in practice for two years,” Wells said.“In some cases that is true and in some cases that is not true,” Tarbert said. “There are new lawyers that have numerous clients, too. When I practiced in the public defender’s office, I had literally thousands of clients, so you could say that I would have had a number of clients that I could have sent those brochures to, too.”“You didn’t need to advertise to those people,” Wells said.Laughter broke out in the courtroom. But the rest of the give-and-take was very serious about how best to balance this trio of interests: protecting the public from false or misleading advertising, protecting First Amendment commercial free speech, and protecting the justice system and legal profession from denigration by improper advertising.At one point, Chief Justice Barbara Pariente declared: “I have to say, I am not a fan of advertising. I think it has done everything to demean our profession, rather than to do what was intended to be done, which is to make the public more informed.”She criticized the rules for allowing what she called “puffing,” yet not allowing lawyers to advertise results of cases to the general public, facts that can be verified. Giving the example of a Tallahassee lawyer’s TV ads which say he was a victim of a personal injury and that is why he became a personal injury lawyer, Pariente said: “That is about as relevant to a decision as he is a good Little League coach.”The Bar’s position, Tarbert explained, is that while the facts of a verdict or settlement can be verified, “the unsophisticated public is not going to know what those mean. Even though they might have the bare facts, that they might not understand, for example, a person received a $1-million verdict, but it was really a $10-million case,” or what the differences are between a particular case with a huge verdict and their own case.“Why then should we allow that to be circulated to members of the Bar, because most of these cases, we know in reality, come from referring lawyers,” Wells said. “These pamphlets are going to be sent on to the clients in divorce firms. I mean, that is the nature of the business, and so it seems to me we either allow it or we don’t allow it. Period!”How best to regulate Web sites filled much of oral arguments.Bar Board of Governors member Chobee Ebbets, of Daytona Beach, served as vice chair of the 2004 Advertising Task Force and currently chairs the Special Committee on Website Advertising Rules.“I think the justices are wrestling with what the task force wrestled with in trying to find harmony amongst the conflicting issue of protecting the public from general advertising and. . . how far can marketing go to allow lawyers to put their name out there and their successes, as far as their past results,” Ebbets said.“That dovetailed into the monstrous problem of the Web, which is in reality the advertising tool for the future of all lawyers.” More than 40,000 Florida lawyers have Web sites, from one page to 500 pages, Ebbets said, and content can be changed daily or even hourly on blogs. When printed out, the content of one law firm’s Web site filled two banker boxes.“That being said, it seems to me that our real judgment needs to be the value system that is in place, not what the Web can do, and that controls our values,” Justice R. Fred Lewis said. “That is what I fear. I start looking at this and we start excluding technology, just because technology is here.. . But technology can be our death if we are not careful.”Now, Ebbets said, the Bar has looked at the Web as “a kind of curious place of information upon request. Someone is seeking to go to the Web site, versus being pushed upon them in a television ad or a phone book ad. That is maybe a distinction without a difference. And that is why we have not stopped there. That is why I am still working with the members of the Bar to find a better solution to it.”Both the 2004 task force and current Web site committee wanted information on Web sites to simply be information upon request, which would exempt it from advertising rules prohibiting prior results and statements characterizing the quality of legal service, Ebbets explained. However, the Board of Governors “was not happy with that conclusion initially and it is not happy with it now.”The next meeting of the committee will be at the Bar’s Annual Convention, after this News went to press.“We are going to craft rules that are specific to the Web, but in harmony with the overall advertising rules,” Ebbets said. “Because, as I understand it, this court has said over and over again, there must be consistency in how we treat advertising, regardless of the medium.”Justice Peggy Quince asked: “Why wouldn’t it be more prudent to have the same restrictions as other kinds of advertisement concerning the results and quality of service? Then, if we see down the road, that maybe Web sites don’t really need it, we can change it. But it would be a lot more difficult, it seems, to go the other way.”Ebbets answered: “With 40,000 Web sites out there.. . they have always been subject to Bar regulation, but we have not yet had an enforcement policy to check lawyer Web sites. Again, candor, here, I think is more important than any place else in the world. When we started looking at Web sites, our Bar counsel looked at Board of Governors’ Web sites and sadly advised many members of the Board of Governors their own Web sites were not in compliance.”(Though not mentioned in oral arguments, the challenges of the tremendous staff workload that would be required to review Web sites for advertising violations has been discussed by Bar leaders.)The exceptions, Ebbets said, “are important because most lawyers use their Web sites to talk about their lawyers, the achievements of their lawyers, their past successes, the dynamics of their law firm. So, those exceptions, while they may not look important, are extraordinarily important. Because most lawyers have used the Web site for that exact purpose, believing that the Web site is different from other forms of advertising, in a place where people are seeking them out, not that they are seeking people out.”Tampa’s W.F. “Casey” Ebsary, Jr., another member of the Advertising Task Force who filed a brief, argued there should be no restrictions on lawyer Web sites because they are not ads, but are “core First Amendment speech.”“The science of the Internet is that when one puts an inquiry into a Web browser — sometimes you will see a Web site listed as http:// — that is a computer command. All scientists would agree that when you make a command in the form of http:// that you are requesting information,” Ebsary said.However, Ebsary said, the Bar should separate out and regulate banner ads, pop-up ads, and sponsored listings. Before oral arguments began, Ebsary showed Ebbets something new: Go to a newspaper’s Web site and read a story about a court case, only to have a pop-up ad from a lawyer soliciting business spring into view on the computer screen.Barry Richard, representing the Bar, talked about a “constitutional distinction between solicited and unsolicited advertising, in that there is a considerably higher impediment to the state’s regulation of solicited, as opposed to unsolicited, advertising.”Justice Raoul Cantero said: “That is exactly what concerns me.” If someone is “affirmatively requesting that information” on a Web site, he asked, “how can we say that is advertising and regulate it as advertising?”“It’s easy to answer the question, as is so often the case in our business, if you look at the extreme ends of the spectrum. Clearly, a pop-up ad is not solicited,” Richard said.Cantero: “A pop-up ad, to me, is not a Web site. That is advertising on somebody else’s Web site. I am talking about somebody going to barryrichardpa.com.”“That’s the other end of the spectrum. You cannot find my biographical sketch unless you specifically look for it in my name,” Richard said. “The category between the two extremes, the best example being this: Assume that you have a pop-up ad that fully complies with the rules that links to a Web site that is not in compliance. So the question then becomes once you have that pop-up ad with the link, do you then or should you then subject the entire Web site to the advertising rules?”“But then prohibiting any kind of statements on a Web site is like saying, well, you can’t have a floatation device because some floatation devices don’t work,” Cantero said. “It seems like what you have to do is regulate those pop-up ads, not regulate the Web site.”Richard responded: “I am not advocating a position. I am just suggesting that the task force, the issues are before them, one response might be, if I make the choice of a pop-up ad, then I have voluntarily subjected my entire Web site to all of the advertising regulations, because I have effectively made it a part of the pop-up ad. So it is my choice. If I don’t want to do that in a pop-up ad, I don’t have to live with it.”Bill Wagner, of Tampa, a member of the Advertising Task Force who also filed a 30-page brief with the court, told the justices: “I have no quarrel with most of the recommendations of the committee and the Bar. They improve what is a difficult problem. I think the court should very carefully consider the proposal with regard to the Web, because I think, as recognized, there are a lot of unsolved questions there. The second position I take is that it is time for the court to require the Bar to do something, to require it to completely study this entire issue of advertising and marketing.”The problem now, Wagner said, is that the rules are still rife with inconsistencies. He also argued that the task force should have conducted a broader and more in-depth review, instead of a process that “assumed that the regulation philosophy conceived over 15 years ago still applied in today’s marketing and advertising environment.”Justice Wells wanted to know statistics of Bar prosecutions of ethical violations stemming from the advertising rule.Tarbert said the Bar receives between 200 to 300 complaints a year on lawyer advertising. Many are either dismissed by Bar staff or “handled in a fairly low-level fashion,” such as a public reprimand or taking a diversion program to go over advertising rules. About two dozen cases a year result in findings of probable cause.Most states do not have rules that specifically address the Internet, Tarbert said, who added Florida is “asking to maintain the status quo before the Bar asks you to either make the rules more restrictive for Web sites or less restrictive.” Court takes up lawyer ad rules Justices grapple with how to deal with more than 40,000 lawyer Web siteslast_img read more