Florida Bar Repeals Guidelines on Advertising Past Results After Declared Unconstitutional

The Florida Bar advertising guidelines, which were revised in February 2014, stated “indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information” and therefore the Bar indicated that it was not likely to approve any such ads even if the ads included the Bar’s required disclaimers.

The Bar’s position prompted a lawsuit after the Bar declared one attorney’s television ads, which the Bar had initially approved, unacceptable.

A federal judge agreed with the attorney and issued an injunction against enforcing the guidelines finding the guidelines to be a violation of the First Amendment.  (Case No. 14-CIV-20786-BLOOM/Valle). In response, The Florida Bar has repealed the past results guidelines pertaining to the use of past results in indoor and outdoor display, radio, and television advertising. The action was a policy decision and does not amend the advertising regulations, but rather the interpretation of the regulations as reflected in the guidelines.

Interestingly, the Bar’s underlying goal in adopting the guidelines was to protect the public; however, a new survey, conducted by Frank N. Magid and Associates on behalf of the Bar, found that the public is not easily misled by attorney advertising past results. In fact, the majority of those surveyed indicated that they are skeptical of the results advertised and not likely to expect the same results nor even recommend or retain a firm based upon that type of advertisement. To read more about the survey results click here.

Though the Bar’s actions do not change the latest version of the advertising rules that were adopted by the Supreme Court in January 2013, some believe that the lawsuit has moved the Bar another step in the right direction. For more about the Bar’s own considerations about its next steps click here.