Attorneys and legal marketers in Florida routinely face one of the most comprehensive and detailed sets of state restrictions on attorney advertising. Pre-publication review of advertisements, an outright ban on testimonial advertising, and rules that interpret Facebook “friend” requests as unlawful solicitation are but a few examples of the constitutionally-overbroad reach of the Florida Bar’s advertising rules. While the advocacy group Public Citizen and a number of Florida attorneys have attempted to challenge these rules in federal court, the Florida Bar has done an effective job of rebuffing or delaying this litigation. The latest example is last week’s 11th Circuit decision in Harrell v. The Florida Bar. Despite the decision’s length (some 63 pages), it effectively kicks many of the issues down the road to be decided at a later day. So, for the time being, Florida attorneys are left with most of the issues raised in Harrell – issued related to the vague and often arbitrary nature of the Florida rules and their application – unanswered. Nonetheless, there are several bright points to be found in the decision:
- While not ruling on the issue directly, the 11th Circuit indicated a willingness to consider whether many of Florida’s attorney advertising rules, including those that prohibit “manipulative” ads and those that “characterize the quality of the lawyer’s services,” are impermissibly vague. Whether through further litigation by Harrell or the Florida Supreme Court taking it upon itself to clean this up, greater certainty would make the work of legal marketers in Florida far easier.
- One of Harrell’s primary issues was his use of the slogan “don’t settle for less than you deserve.” The bar had flip-flopped on the slogan, approving it at one time and then reversing itself years later. In the course of the litigation, the Bar flipped again, approving the slogan and then moving to dismiss Harrell’s complaint as moot. The Court of Appeals rejected the Bar’s mootness argument, finding that “the circumstances here raise a substantial possibility that “the defendant has . . . changed course simply to deprive the court of jurisdiction.” This means the federal district court will be able to hear Harrell’s challenge to the Bar’s vague and arbitrary approach to reviewing advertising.
- The one area where the Court provided attorneys and marketers the most guidance was around the Bar’s requirement that lawyers submit TV or radio ads for review at least 20 days prior to the first planned airing date. Harrell challenged this rule as an unconstitutional prior restraint on speech, but the court, relying on a long line of cases addressing the commercial speech doctrine, found that this 20-day filing requirement is constitutional.
Although it’s unfortunate that the Harrell decision did not get to the bottom of the vagueness that resonates in Florida’s rules, it did offer a step in the right direction. Hopefully Harrell will continue to press this case in district court, and rules can be pruned back to the point where they are both constitutional and amenable to consistent interpretation by those marketing legal services in the Sunshine State. By Josh King Josh is General Counsel & Vice President of Business Development at Avvo, Inc. He writes and speaks frequently on issues related to interactive media law and legal ethics.