Any attorney who has advertised in Florida has probably experienced a few calls with the Florida Bar Ethics Committee to discuss what is and is not allowed in their print or television ad. Right or wrong, the Florida Bar’s advertising rules are among the most restrictive in the nation, prohibiting slogans, descriptions of the quality of service, testimonials, or ads depicting “suspense” or of “solving a problem”.
In January 2008, Public Citizen, along with a prominent Jacksonville attorney, filed a lawsuit in federal court, contending that the Florida Bar rules violate free speech, and impose arbitrary and unfair restrictions on how lawyers can communicate with consumers.
While it is way too early to tell what the outcome of the suit will be, this is not the first time that a suit has been filed against a state Bar organization on the basis of First Amendment Rights. There appears to be a trend by both attorneys and watch dog organizations including Public Citizen and the FCC to fight overly restrictive regulations. Both the New York State Bar and the Louisiana State Bar have also had suits filed by Public Citizen in the last few years.
States with restrictive advertising rules adopt these rules ostensibly ‘to protect consumers’; however, the common complaint against these Bar organizations from their own members is that the rules are arbitrary and restrict fair competition.
For its part, Public Citizen is “interested in the right to engage in truthful legal advertising because commercial speech in this context not only encourages beneficial competition in the marketplace for legal services, but can also educate consumers about their rights, inform them when they may have a legal claim, and enhance their access to the legal system.”
Furthermore, Public Citizen claims that attorney advertising restrictions “appear to be targeted at basic techniques used in effective advertisements. There is nothing actually or inherently misleading; however, about any of these techniques. Consumers are accustomed to the notion that actors, mottos, and dramatized scenes appear in commercials, and are unlikely to make the assumption that everyone and everything they see in a commercial is literally real.”
In a statement responding to the lawsuit against them, the Florida Bar says that it “supports the most restrictive limitations on lawyer advertising consistent with constitutional requirements so as to better protect the public.” So, what’s the moral of the story? Well, the moral of the story is that more and more state Bar organizations are coming under fire for restrictions on first amendment rights in regards to attorney advertising. And while I wouldn’t predict quick victories for Public Citizen and the plaintiffs in all cases, these suits clearly mark a change in practicing attorneys’ attitudes about legal advertising. An increasing number of attorneys and law firms are realizing that being a reputable attorney with traditional ideologies on practicing law – and being an attorney / law firm who advertises – aren’t mutually exclusive.
Advertising isn’t just used by ambulance chasers anymore. In fact, one could argue that the public needs to know about the reputable, credible attorneys in their market. I doubt that many attorneys want to see the profession sullied. But given increased competition, more and more attorneys understand the need to advertise and market their practice in order to grow their business and expect to be able to use commonly accepted advertising and marketing styles and practices.
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