New Restrictions on Advertising in Florida

Earlier this month, the Supreme Court of Florida issued a per curiam opinion regarding the advertising rules for lawyers in that state.

According to the opinion, a Task Force was appointed in 2004 to study, review and recommend changes to the advertising rules for lawyers in Florida. The result of the Task Force was a number of proposed changes which were then submitted to the Board of Governors of the Florida Bar. Apparently, the proposals were published for comment, but few comments were received.

The opinion first discusses certain communications that the Bar proposed should be exempt from the advertising rules, and agreed that communications between lawyers and their family members should be exempt, but requested further information as to why the Bar recommended that communications between lawyers and communications with current and former clients should be exempt from the advertising rules, and deferred those exemptions. Presumably, then, at present, lawyers should be extremely careful to ensure that communications with their clients and former clients, and even communications with other lawyers, conform to the Florida rules.

According to the opinion, in Florida, a nonlawyer spokesperson must identify him or herself as a spokesperson and specifically disclose that he or she is not a lawyer practicing with the firm. The court rejected a proposal that this requirement be used only when it was not already apparent from the context of the advertisement that the person is not a lawyer.

The court specifically mentions that a special committee has been appointed in Florida regarding computer accessed communications, including websites and e-mail, and therefore the court declined to address internet advertising. Florida attorneys should pay particular attention to the committee's recommendations regarding this issue.

Finally, the court recommended that the Florida Bar undertake additional measures to study lawyer advertising, including soliciting public evaluation and comments on the issue.

The appendix to the opinion contains the Florida rules. Some that may be particularly important to lawyers are:

1. The prohibitions against the use of testimonials and the use of statements describing or characterizing the quality of a lawyer's work in unsolicited communications
2. The prohibition against advertising for legal employment in an area in which the lawyer or firm does not currently practice law (does this mean that if a lawyer is new or doesn't have a current client in that practice area, the lawyer cannot advertise for clients in that area, even if the lawyer is trained to practice in that area?)
3. The ban on the use of the terms "specialist" and "expert" if the lawyer is not specifically certified in that area
4. The prohibitions on the use of certain visuals, including illustrations (see the comments regarding this issue - an example was used that a lawyer could not use an illustration of a fist, which would, according to the comments, imply a result, which is prohibited)
5. The requirement that certain unsolicited communications contain the word 'advertisement' in red ink on both the first page and the envelope
6. The requirement that copies of advertisements be submitted to the Florida Bar for evaluation - accompanied by a fee (for TV and radio, this must be done 15 days in advance of the advertisement's air date, and for other advertisements, filing is prior to or concurrent with the original dissemination)

Not all of these regulations are new, and as always, I encourage all attorneys to become familiar with the rules governing advertising in the states in which they practice - particularly in light of the fact that many communications that lawyers may not generally consider to be advertising are increasingly becoming defined as 'advertising' or 'solicitation' in many states.

Finally, it's suprising that there was so little commentary provided by members of the bar to the proposed changes to the advertising rules in Florida. If lawyers don't express an interest or provide opinions with regard to how these rules affect them, their practices and their clients, differentiating themselves will become more and more difficult as the advertising rules become more and more restrictive.