On January 31, 2013, the Florida Supreme Court adopted the Florida Bar’s proposal for a complete overhaul of the advertising rules.
The Bar conducted an extensive study, which involved examining many court rulings and public surveys, and concluded that the new advertising rules should focus “primarily on preventing the dissemination of misleading and unduly manipulative information.” As a result of the overhaul, existing rules 4-7.1 through 4-7.10 will be deleted and replaced with new rules numbered 4-7.11 through 4-7.23.
The court specifically discussed the modification of proposed Rule 4-7.13(b)(10) and requirements found in proposed Rules 4-7.13 and 4-7.14. Proposed Rule 4-7.13(b)(10) will allow for current, former, or retired executive, judicial, or legislative branch officials who currently engage in the practice of law to use their title when it is accompanied by “clear modifiers” and is placed after the individual’s name. Contrary to prior opinion, the court found that the use of such a title is not “inherently misleading” when employed in the above-mentioned way. The court then discussed the “objectively verifiable” requirement in proposed Rules 4-7.13 and 4-7.14. Attorneys are allowed to make statements in advertisements that can be verified by objective facts. However, attorneys cannot make statements such as “best trial lawyer in Florida” because this cannot be verified by objective facts. Importantly, prohibition of these statements may not actually result in discipline unless the Bar proves the statement “is false or not objectively verifiable.
Justice Pariente issued a dissent which denounced the majority opinion’s “one-size-fits-all approach.” Pariente says the advertising rules should draw a distinction between traditional advertising, such as television commercials, and website advertising. She states that “the potential harms and dangers presented by traditional advertising require closer oversight, whereas the inclusion of lawyers’ websites and information upon request as part of the lawyer advertising restrictions is unnecessary and has the potential to result in a chilling effect.” Justice Canady also issued a dissent proclaiming that the proposed rules remain “unduly restrictive” and that the Bar needs to take a closer look at the First Amendment rights at issue. Justice Quince dissented in part, but offered no explanation for her decision.
The new advertising rules will become effective on May 1, 2013.
Do you think the Florida Supreme Court appropriately balanced First Amendment concerns with the need for consumer protection in adopting the new advertising rules?
Do you think the new rules are likely to be challenged again because this was such a close decision (4-3) and the issue has been a hotly debated topic?
