Can I get a Hooyah! for Ed Poll’s tip today, Lawyers in a “Guilded” Cage? (sic) Anyone who works in the legal industry in Florida, and most legal marketers nationwide, know that the rules restricting lawyer advertising and communications in Florida are the most restrictive in the nation. Hiding behind the “profession” of law, the need to protect the “unsophisticated” purchaser of legal services, and, well, the snobbishness of corporate attorneys on how to deal with those pesky consumer defense practices, the Florida Bar prohibits and restricts most forms of communications which, per my non-lawyer’s eyes and for what is strictly my PERSONAL OPINION, are in clear violation of the First Amendment rights of lawyers and law firms. As a legal marketer, I cannot imagine taking on the challenge involved when it comes to overseeing law firm marketing and advertising in Florida, and have great respect for my friends and colleagues who do so. There are so many hoops to jump through, that, well, I just avoid Florida every chance I get. In the past few years, however, individual lawyers, law firms, and the ACLU have begun fighting back, and the First Amendment is winning. Hooyah! Per Ed’s post today:
Now it appears that some lawyers may have had enough. As reported in the New York Law Journal and summarized in the ABA Journal, the Florida Bar (which imposes some of the strictest regulations in the country on lawyer advertising) has run into a “firestorm” of objections from law firms, the ACLU and the Federal Trade Commission over its attempts to make those rules even tougher. The rules proposed to ban online testimonials, summaries of case results and “deceptive, misleading, manipulative” or confusing audio or visual content, resulted in protests that such restrictions are overly vague and unfair. The Florida Bar offered a “compromise” that would allow existing web sites to be viewed if visitors clicked through a disclaimer process and double-click barrier in order to get useful information about legal services. When major law firms protested loudly, the Bar put off its July 1 implementation deadline and is allowing lawyers to submit comments through mid-August for further modifying the rules. It is one thing to regulate for truth and fairness in promotional statements, and to restrict hyperbole so as not to create false expectations. It is another thing to say how the communication can be framed, create vague restrictions on what can and cannot be said, and impose physical restrictions on information that should be freely available. The Bar seeks to regulate lawyers in ways that other professional associations do not, would not and could not. The losers are small firms and sole practitioners – and those clients who would benefit from learning about them.
Josh King, General Counsel and Vice President of Business Development for Avvo, guest blogged here about the recent 11th Circuit decision in Harrell v. The Florida Bar. That’s right, Florida. Take that. Lawyers are business people and you will soon see that they have the RIGHT to operate their businesses as, well, businesses. States already have laws in place for “truth-in-advertising,” for ALL businesses. In California, businesses are governed under Business and Professions Code at §17200 and §17500. Federally, the Lanham Act (15 U.S.C. 1125), which is generally enforced by the Federal Trade Commission (FTC) can, and should, cover law firms. Really, for how long must we continue to stamp “advertising” on all of our advertisements and communications, just to be on the safe side? For how long will we have to include “newsletter enclosed” in a 10 pt font on all envelopes carrying newsletters? How many disclaimers on websites, blogs, and at the bottom of every email MUST we include, and how often, and how big, and how long?? Is it our responsibility to make certain that the consumer understands that the disclaimer at the bottom of the web page includes the disclaimer? Or, per the Florida Bar Association’s proposed “compromise,” why should the consumer have to click “through a disclaimer process and double-click barrier in order to get [to the] useful information about legal services”? Come on, if you’re going to ban anything, how about banning legalese?? That will do more for consumer confidence and understanding than the standard disclaimers I read. Ahhhh, I do love the smell of a First Amendment win against restrictive bar rules. The battles are being won, and, hopefully, the war will be won one day as well. Hooyah!