For anyone who follows the saga of the State Bar of Florida v. the First Amendment of the United States, I am happy to announce that the First Amendment has won yet again. In the latest ruling, as Larry Bodine points out on his blog, a federal judge,
[b]lasting the Florida Bar, … threw out state ethics rules that ban the use of past results in lawyer advertising in indoor and outdoor display, television and radio media. The court held that the rules were unconstitutional and in violation of the First Amendment.
Fans of the First Amendment will enjoy ready more about the case at Rubenstein v. The Florida Bar. You’ll find such great tidbits, such as The Florida State Bar’s own research shows that 74% of respondents “indicate that past results are an important attribute in choosing a lawyer.” Or quoting Bates v. State Bar of Arizona, where the US Supreme Court rejected arguments that “the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information.” In a country where Yelp! and Google are the go-to research tools for anyone trying to purchase a product or service, more information is better, not less. As I have written before, every state, and the federal government, already has rules in place prohibiting false advertising (click here for more posts). Use those laws for enforcement, if needed. But the rules for lawyers, via the state bar associations, often times go way beyond those constitutionally acceptable prohibitions. One of my favorite rules is where a bar association bans (explicitly or implied) the word “expert” or “specialist” when an attorney is describing him or herself in a bio. A quick search in Google finds that an expert is “having or showing special skill or knowledge because of what you have been taught or what you have experienced,” and a specialist is “a person who has special knowledge and skill relating to a particular job, area of study, etc.” (And it didn’t take a juris doctorate from an ABA-accredited law school to figure out what those word mean) Riddle me this: When you’ve spent the past 20-plus years as an IP attorney, or litigating hundreds of (fill in the blank) cases, or exclusively representing families in divorces, why shouldn’t you be able to call yourself an expert or specialist? With or without a state certification in such a field? But the state bar associations have no problem with you branding yourself a Super Lawyer or Best Lawyer (with or without the plaque). If you have past experience, and verifiable results, why should you not be allowed to communicate that to the purchasers of your services? Oh, wait, you now can, thanks to the First Amendment. I just wonder how many billable hours and attorney fees went into getting to that decision that seems so obvious to this “non-lawyer”? (probably enough to call yourself a specialist in Constitutional Law.) Once again, let’s give it up for the First Amendment … now, if we can just get rid of some of those other crazy disclosures rules.