Hello everyone and welcome to the October 4, 2011 edition of the Ethics Alert. This Ethics Alert will discuss the very recent media reports of the September 30, 2011 federal district court opinion which struck the Florida Bar advertising rules which prohibit “manipulative” advertising language and background sounds other than instrumental music as violations of the First Amendment of the U.S. Constitution.
As many of you already know (particularly if you advertise), Florida Rule 4-7.2(c)(3) states that lawyers “shall not include in any advertisement or unsolicited written communication any visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events that are deceptive, misleading, manipulative, or likely to confuse the viewer.” Florida Bar Rule 4-7.5(b)(1)(C) prohibits “any background sound other than instrumental music” in television and radio advertisements.
On September 30, 2011, Jacksonville based Middle District of Florida Judge Marcia Morales Howard issued an opinion finding that these prohibitions violate the First Amendment rights of lawyers and should be stricken. The judge issued the opinion in a federal court lawsuit filed in 2008 by Jacksonville lawyer William Harrell Jr. (which I have discussed in previous Ethics Alerts) against The Florida Bar after the Bar found that his advertising slogan, “Don’t settle for less than you deserve,” was improperly laudatory. The Bar subsequently allowed the lawyer to use that slogan; however, he continued his lawsuit alleging that the advertising rules violate the U.S. Constitution.
According to reports, the judge’s opinion found that the prohibition on “manipulative” advertisements was unconstitutional and void since the term is so vague that it “fails to adequately put members of the Bar on notice of what types of advertisements are prohibited.” The opinion also struck down the requirement that background sounds must be limited to instrumental music only. Barry Richard, the lawyer who represented the Bar in the lawsuit, has recommended the opinion not be appealed by the Bar.
As I have previously reported, comprehensive revisions to the Bar’s advertising rules are under review by the Supreme Court of Florida. The proposed rules may address these issues and, if approved by the Court, the revised rules may render the ruling moot. Stay tuned…
…and be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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