Florida Attorney Advertising Rule is Unconstitutional.

On December 8, 2014, the United States District Court for the Southern District of Florida, decided that Florida Bar Rules  4-7.13 and 4-7.14 are Unconstitutional.  Rules 4-7.13 and 4-7.14 as restated in the Guidelines completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media. (Rubenstein v. Florida Bar, 2014 U.S. Dist. LEXIS 170133).

In this case, the Plaintiffs (Robert Rubenstein and Rubenstein Law, P.A.) challenged on First Amendment grounds, certain rules and guidelines concerning attorney advertising designed and implemented by the Bar. Florida attorneys are required to submit all non-exempt advertisements to the Bar for evaluation as to rule-compliance. Rule 4-7.19, Rules Reg. Fla. Bar (2013). An attorney may obtain an advisory opinion from the Bar concerning the compliance of a contemplated advertisement, but may also begin advertising prior to Bar review. Id. Advisory opinions “are advisory only and are not the basis for action by [the Bar’s] grievance committees.” Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation § 1 (2002) (“Opinion Procedures”). The Bar must advise the attorney as to its evaluation of all filed advertisement by issuing a Notice of Compliance or Notice of Noncompliance. Rule 4-7.19. The Bar may subsequently change its finding of compliance and must then provide Notification of Noncompliance.  A finding of compliance by the Bar is binding on the Bar in any subsequent grievance proceeding, such that a favorable opinion serves as a safe harbor, protecting the advertising attorney from discipline arising out of dissemination of the subject advertisement. By contrast, the Rules provide that “[a] lawyer will be subject to discipline as provided in these rules for . . . dissemination of a noncompliant advertisement in the absence of a finding of compliance by The Florida Bar.” The Rules further provide that where a Notice of Noncompliance is issued, the Bar is required to “advise the lawyer that dissemination or continued dissemination of the advertisement may result in professional discipline.”

Relying on the newly amended Rules, Plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. Id.  Plaintiffs’ advertisements include, for example, a television segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting the words “COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each case.”  Critically, the Bar’s notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against “false and misleading” attorney advertising.

In early 2014, the Bar’s Board of Governors issued new “Guidelines for Advertising Past Results.” . The Guidelines were issued “to assist lawyers in complying with these requirements when advertising past results.” The Guidelines provide that:

The inclusion of past results in advertising carries a particularly high risk of being misleading. Such advertising will require the inclusion of more information than most types of advertising in order to comply with Rules 4-7.13(a)(2) and 4-7.14(a). Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not issue a notice of compliance for advertisements in such media that include references to past results.

The Guidelines also contain specific restrictions and instructions regarding, for example, advertising dollar amounts and aggregating past results.

Shortly following issuance of the Guidelines, the Bar notified Plaintiffs that it had withdrawn its prior approval of multiple advertisements. The Withdrawal Letter explained that “subsequent to the issuance to you [Plaintiffs] of the prior opinion, the Florida Bar Board of Governors issued guidelines on interpretation of Rule 4-7.13(b)(2) regarding past results.” Id. at 1. The Bar then stated that:

The Board of Governors has directed staff to withdraw the Florida Bar staff’s advisory advertising opinion that was previously issued . . . only as to past results. The remainder of the prior Florida Bar staff advisory advertising opinion remains in effect. The Florida Bar staff advisory advertising opinion is that the advertisement(s) do not comply with the new past results guidelines adopted by The Florida Bar Board of Governors and therefore do not comply with Rule 4-7.13(b)(2) . . . .

The Withdrawal Letter further instructed that “references to past results generally may not be advertised in indoor and outdoor display media (billboards and other signs) or in television and radio advertisements. You may not include the reference to past results in the advertisement(s) as they appear in your submission in these media.” It advised that “[u]se of an advertisement that does not comply with the lawyer advertising rules past the time period noted above [of thirty days] may result in disciplinary action,” but explained that “[t]his letter does not constitute disciplinary action, nor does it mean that the bar has opened an investigation.”

Plaintiffs filed their lawsuit against the Florida Bar in March 2014. Plaintiffs have continued to disseminate the subject advertisements.

The Court granted summary judgment in favor of Plaintiffs. Stating there are no factual issues in dispute regarding the Bar’s blanket prohibition on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar failed to demonstrate that the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines advance a substantial governmental interest, or that the those restrictions are not more extensive than necessary to serve that interest. The Court Ordered that Plaintiffs’ Motion for Summary Judgment, is GRANTED and the the Guidelines’ interpretation of the Rules to completely prohibit the use of past results in attorney advertising in indoor and outdoor display, television and radio media, contained in the section of the Guidelines titled “Unacceptable Media”, is UNCONSTITUTIONAL in violation of the First Amendment to the United States Constitution. Further the Court enjoined the Bar from enforcing Rules 4-7.13 and 4-7.14 as restated in the Guidelines to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.