Recently, the Florida Bar Board of Governors unanimously voted on a proposal to amendRule 4-7.14, “Potentially Misleading Advertising.”
In doing so, the Board hopes to put an end to a five-year debate regarding how lawyers and law firms advertise specializations or expertise.
In2015, the Searcy, Denney, Scarola, Barnhart & Shipley P.A. law firm challenged the constitutionality of the Florida Bar’s revisions to the advertising rules approved by the Florida Supreme Court. Ultimately, the United States DistrictCourt for the Northern District of Florida struck down a long-standing prohibition on claims of expertise or specialties in advertisements by non-certified lawyers. Although the court found that the law firm’s claims were not ripe for judgment, it nevertheless found the challenge to Rule 4-7.14 was proper because it prohibits lawyers from making truthful statements about actual results obtained for clients.
Prior to the court’s decision in Searcy v. Florida Bar, Rule 4-7.14 prohibited lawyers from engaging in certain types of advertising. Examples of potentially misleading advertisements included statements that a lawyer is “a specialist, an expert, or other variations of those terms unless: (a) the lawyer has been certified under the Florida Certification Plan;(b) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association orThe Florida Bar; or (c) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan.”
The proposed amendment removed the portions of the rule that banned truthful statements about a lawyer or law firm’s expertise and added new subdivisions.Under the proposed provisions, a lawyer may advertise that he or she is a specialist or expert in an area of practice so long as they are certified, “or the lawyer can objectively verify the claim based on the lawyer’s education, training, experience, and substantial involvement in the area of practice in which specialization or expertise is claimed.” Additionally, the proposed provisions would also allow law firms to claim the same so long as “the law firm can objectively verify the claim based on the education, training, experience, and substantial involvement in the area of practice by at least one of the lawyers employed in the law firm” with the qualification that “if the law firm cannot objectively verify the claim for every lawyer employed by the firm, the advertisement must contain a reasonably prominent disclaimer that not all lawyers in the firm specialize or have expertise in the area of practice.”
The Board plans to file the proposal to amend 4-7.14 with the Florida Supreme Court on or about December 5, 2018, in a petition to amend the Rules Regulating theFlorida Bar. Pending approval from the Florida Supreme Court, the amendment would allow lawyers who specialize in practice areas where certification is not available to advertise their expertise.
Read more about the proposed amendments here.
Read the petition for amended Rule 4-7.14 here.
