Amendments to Rules Reg. Bar-Advertising

• Decision Date: 20 December 2007
• Docket Number: No. SC05-2194.,SC05-2194.
• Citation: 971 So.2d 763
• Parties: In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR — ADVERTISING.
• Court: Florida Supreme Court

971 So.2d 763

In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR — ADVERTISING.

No. SC05-2194.

Supreme Court of Florida.

December 20, 2007.

John F. Harkness, Jr., Executive Director, Tallahassee, Florida, Henry M. Coxe, III, President, Jacksonville, Florida, Alan B. Bookman, Past President, Pensacola, Florida, Kenneth L. Marvin, Director of Lawyer Regulation, Mary Ellen Bateman, Interim Division Director, John Anthony Boggs, Director, Attorney Consumer Assistance Program, Elizabeth C. Tarbert, Ethics Counsel, Charles Chobee Ebbets, Chair, Special Committee on Website Advertising Rules, Kelly Overstreet Johnson of Broad and Cassel, and Barry S. Richard of Greenberg Traurig, P.A., The Florida Bar, Tallahassee, Florida, for Petitioner.

Bill Wagner of Wagner, Vaughan, McLaughlin and Brennan, P.A., Tampa, Florida, W.F. "Casey" Ebsary, Jr., Tampa, Florida, Timothy P. Chinaris, Montgomery, Alabama, Responding with comments.

PER CURIAM.

The Florida Bar petitions this Court to consider proposed amendments to chapter 4 of the Rules Regulating the Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

The proposals are the result of a study by the Bar's Advertising Task Force 2004 (Task Force) and affect subchapter 4-7 of the rules. The Task Force, which was appointed in February 2004, was charged by the Bar with the following mission:

The Advertising Task Force 2004 is charged with reviewing the attorney advertising rules and recommending changes to the rules if deemed necessary, including any changes to clarify the meaning of the rules and provide notice to Florida Bar members of the rules' requirements. Included within this charge is an analysis of the advertising filing and review requirement, including consideration of mandatory review prior to dissemination of advertisements.

The Task Force held several meetings, solicited comments from numerous sources, and consulted various Bar sections. The Task Force published information and draft proposals in The Florida Bar News and on The Florida Bar's website. Thereafter, the Task Force submitted its recommendations to the Board of Governors of The Florida Bar (Board).

Although the Board adopted the majority of the recommendations, two significant areas where the Board declined to adopt the Task Force's recommendations were proposals dealing with (1) exempting websites from regulation (the Board seeks regulation of websites); and (2) when to review television and radio advertisements (the Board believes review should occur before dissemination). Thus, some of the Task Force's recommendations were modified by the Board.

The proposals were published for comment in the August 1, 2005, edition of The Florida Bar News. The Bar did not receive any comments in response to the official notice. Further, in the notice, the Bar directed interested parties to file their comments directly with the Court. Thereafter, on December 14, 2005, the Bar filed the proposals with the Court. The Court received three comments.

The Bar proposes amendments to rules 4-7.1 (General); 4-7.2 (Communications Concerning a Lawyer's Services); 4-7.3 (Advertisements in the Public Print Media) 4-7.4 (Direct Contact With Prospective Clients); 4-7.5 (Advertisements in the Electronic Media Other Than Computer-Accessed Communications); 4-7.6 (Computer-Accessed Communications); 4-7.7 (Evaluation of Advertisements); 4-7.8 (Exemptions From the Filing and Review Requirement); 4-7.10 (Firm Names and Letterhead); and 4-7.11 (Lawyer Referral Services). Further, the Bar proposes the deletion of rule 4-7.9 (Information About a Lawyer's Services Provided Upon Request).

After considering the comments filed and holding oral argument, the Court adopts The Florida Bar's proposals, except as follows.

The Bar proposed several amendments to rule 4-7.1 (General), including adding subdivisions that would exempt certain areas from the advertising rules. The proposed exemptions included, along with other areas, communications with family members, communications between lawyers, and communications with current and former clients. We adopt the exemption in respect to communications with family members. We request further information from the Bar as to why communications between lawyers, and communications with current and former clients, should be exempted from the advertising rules, including any research or evidence supporting such exemptions. We defer adoption of those two exemptions at this time.

For similar reasons, the Court deletes a portion of the proposed comment to rule 4-7.4 (Direct Contact With Prospective Clients). The proposal would have added language to the comment that would have stated that the advertising rules did not apply to certain "prior professional relationships."

Next, current rule 4-7.5 requires a nonlawyer spokesperson who speaks on behalf of a lawyer or law firm to comply with certain requirements. The spokesperson must identify himself or herself as a spokesperson. Also, the spokesperson must disclose that he or she is not an attorney practicing with the lawyer or firm. The proposal for rule 4-7.5 would change the rule regarding affirmative disclosures by spokespersons. Instead of following the established requirements, the proposal would require an affirmative disclosure that a nonlawyer spokesperson is being used only when it is not apparent "from the context of the advertisement that the spokesperson is not a lawyer." In comparison to the proposal, the established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public. Therefore, the Court does not adopt the proposal.

Existing rule 4-7.6 (Computer-Accessed Communications) governs computer-accessed communications such as websites and electronic mail. The proposal would make several changes to the rule. However, the Court notes that the Board has appointed a special committee to review issues regarding websites and Internet communications. The special committee is charged with making recommendations to the Board if appropriate. Thus, it is not efficient or sound for the Court to address the regulation of Internet advertising at this time, while the special committee is studying these very issues. Accordingly, the Court does not adopt the proposal for rule 4-7.6. The Court will consider the regulation of Internet communications when the Bar files the report of the special committee.¹

Further, the Court requests that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising, as recommended by Mr. Bill Wagner in his written and oral comments to the Court.

Also, the Bar proposed amendments to rule 4-7.8 (Exemptions From the Filing and Review Requirement), which would have included deletion of existing subdivision (d) (a communication mailed only to existing clients, former clients, or other lawyers is exempt from the filing requirements of rule 4-7.7). However, the Bar subsequently filed a motion requesting that the Court retain subdivision (d) in the rules, while the Bar studied issues raised by related rule 4-7.1 (General). Thus, in light of related rule 4-7.1, we modify the proposal to maintain existing subdivision (d) in rule 4-7.8.

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The comments are included for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective on February 1, 2008, at 12:01 a.m.

It is so ordered.

WELLS, PARIENTE, QUINCE, and CANTERO, JJ., concur.

LEWIS, C.J., concurs in part and dissents in part with an opinion.

BELL, J., concurs in part and dissents in part with an opinion, in which ANSTEAD, J., concurs.

LEWIS, C.J., concurring in part and dissenting in part.

Although I agree with most of the new amendments, I dissent with regard to the advertising pandering of the new designation termed "expert." It is this Court's obligation and duty to prescribe standards of professionalism and ethical conduct for attorneys who are privileged to practice law in the State of Florida. See art. V, § 15, Fla. Const.; R. Regulating Fla. Bar 3-1.2. However, when we abdicate that duty by allowing Florida's attorneys to foist artfully crafted, bar-sanctioned, advertising-based deception upon the lay public, I must dissent. I, therefore, express my disagreement with the decisions of the majority in In re Amendments to the Rules Regulating the Florida Bar, SC06-736, ___ So.2d ___, 2007 WL 4440381 (Fla. Dec. 20, 2007), and the instant case, to the extent that these decisions authorize board-certified attorneys to denominate and advertise themselves as "experts." We often voice concern with regard to professionalism and the declining respect for the legal system, but we fail to follow our own words with corresponding action. In my view, a very significant contribution to this eroding respect can be traced directly to the shift from a professional model to an economic model, which includes progressively-escalating advertising gimmicks. Today the majority adds another bullet to that economic arsenal.

My analysis consists of four observations. First, under the commercial-speech doctrine, this Court remains free to restrain deceptive or misleading attorney advertising. Second, "specialist" and "expert" are not synonymous; in fact, they are qualitatively different. Furthermore, claims of "expert" status are inherently misleading. Third, the "expert" amendments have "flown under the radar" and have not been adequately or appropriately debated or briefed. Fourth and finally, my view is consistent with both the majority approach across the country, and with Florida's regulation of another group of...