Hello everyone and welcome to this Ethics Alert blog which is Part 2 of my brief review of the new Florida lawyer advertising rules which will become effective on May 1, 2013 at 12:01 am. The Supreme Court of Florida’s opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf.
As I indicated in my previous Ethics Alerts, the opinion gave new numbers to the revised rules stating that the court was concerned that, without this modification “use of the same rule numbers could create confusion in case law for many years” since the new rules are “substantially different from the current rules.”
The revised advertising rules, as renumbered, are as follows: Rule 4-7.11 (Application of Rules); 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.14 (Potentially Misleading Advertisements); 4-7.15 (Unduly Manipulative or Intrusive Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion); 4-7.18 (Direct Contact with Prospective Clients); 4-7.19 (Evaluation of Advertisements); 4-7.20 (Exemptions From the Filing and Review Requirement); 4-7.21 (Firm Names and Letterhead); 4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).
Rule 4-7.14 (Potentially Misleading Advertisements). When they become effective, the Florida lawyer advertising rules will explicitly prohibit “potentially misleading” advertisements for the first time. “Potentially misleading” advertisements will include (but are not necessarily limited to) the following:
1. advertisements subject to “varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context”;
2. advertisements that “are literally accurate, but could reasonably mislead a prospective client regarding a material fact” and;
3. advertisements with references to “membership in or recognition by an entity that purports to base such membership or organization on a lawyer’s ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria” and draws from “a reasonable cross-section of the legal community the entity purports to cover.”
The Rule also states that an advertisement may be made permissible if “information or statements that adequately clarify the potentially misleading issue” are included with the advertisement.
Rule 4-7.15 (Unduly Manipulative or Intrusive Advertisements). This Rule will prohibit advertisements that are “unduly manipulative or intrusive” and an advertisement is “unduly manipulative” if:
(a) the advertisement has features designed to “solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client;”
(b) the advertisement uses an “authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, to endorse or recommend the lawyer or act as spokesperson for the lawyer;”
(c) the advertisement uses the voice of image of a “celebrity” (except a local announcer who regularly records advertisements and does not endorse the advertiser); or
(d) the advertisement “offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising” (discounted fees are specifically permitted).
The Rule and the Comment do not actually define the terms “intrusive” or “unduly intrusive.” The term “authority figure” is also not defined, although the rule refers to “a judge or law enforcement officer, or an actor portraying an authority figure” as examples. This would appear to give the Bar broad authority to interpret the parameters of these terms when prosecuting lawyers for alleged violations of the rules..
Bottom line: As I previously stated, when the revised rules become effective on May 1, 2013, the Florida advertising rules will be some of the most comprehensive in the country, particularly related to social media and electronic communication, and will be a sea change with regard to lawyer advertising regulation in Florida.
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670