Rubenstein v. Fla. Bar

• Decision Date: 08 December 2014
• Docket Number: Case No. 14–CIV–20786.
• Citation: 72 F.Supp.3d 1298
• Parties: Robert RUBENSTEIN and Rubenstein Law, P.A., Plaintiffs, v. The FLORIDA BAR and Arlene K. Sankel, in her official capacity as Chief Branch Discipline Counsel of the Miami Branch of The Florida Bar, Defendants.
• Court: U.S. District Court — Southern District of Florida

72 F.Supp.3d 1298

Robert RUBENSTEIN and Rubenstein Law, P.A., Plaintiffs

v.The FLORIDA BAR and Arlene K. Sankel, in her official capacity as Chief Branch Discipline Counsel of the Miami Branch of The Florida Bar, Defendants.

Case No. 14–CIV–20786.

United States District Court, S.D. Florida.

Signed Dec. 8, 2014.

Filed Dec. 9, 2014.

Gregory A. Beck, Gupta, Beck, PLLC, Washington, DC, Robert Kent Burlington, Daniel Frederick Blonsky, Coffey Burlington, Miami, FL, for Plaintiffs.

Barry Scott Richard, Michael Howard Moody, Greenberg Traurig, Tallahassee, FL, for Defendants.

MEMORANDUM OPINION AND ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

BETH BLOOM, District Judge.

This matter is before the Court upon the Motion for Summary Judgment, ECF No. [28] (the “Motion”), filed by Plaintiffs Robert Rubenstein and Rubenstein Law, P.A. (“Plaintiffs” or “Rubenstein”). Defendants The Florida Bar and Arlene K. Sankel (“Defendants” or the “Bar”) timely responded, ECF No. [36] (the “Response”), and Plaintiffs timely replied, ECF No. [38]. The Court has reviewed the Motion, all supporting and opposing filings and submissions, and the record in the case. For the reasons that follow, Plaintiffs' Motion for Summary Judgment is GRANTED.

I. FACTUAL BACKGROUND

Through this action, Plaintiffs challenge on First Amendment grounds, certain rules and guidelines concerning attorney advertising designed and implemented by the Bar. As a result, Plaintiffs seek injunctive and declaratory relief.

The rules regulating attorney advertising in Florida have long prohibited or restricted reference to past results. See Harrell v. The Florida Bar, 608 F.3d 1241, 1248 (11th Cir.2010). In 1997, a Task Force convened by the Bar recommended a complete ban on references to past successes or results in attorney advertising in indoor or outdoor display, television and radio media. The Task Force stated that

References to past successes or results carry the inherent risk of misleading a potential client for a number of reasons. First, circumstances which appear similar to the untrained eye are often very dissimilar in the eyes of the law. A lay person might be misled into believing that the results obtained in the advertised cases indicate that the same results would be obtained in his or her case. Second, past results are not valid indicators of an attorney's competence or fitness to handle a particular matter. Third, a lay person is not in a position to judge the significance of a particular result. What appears to be a success might, in fact, be a poor result and vice versa. Furthermore, even a highly successful or unsuccessful result may not reflect upon the ability or performance of the attorney handling the matter. Only a person with legal training and experience in the particular field and a knowledge of all the facts would be in a position to accurately judge how a particular result reflects upon the lawyer.

ECF No. [29–2] Exh. 1, The Florida Bar Joint Presidential Advertising Task Force, Final Report & Recommendations (May 1997) (“1997 Task Force Report”) at 13–14. Most “computer-accessed communications,” such as attorney or law-firm websites and unsolicited email communications, were separately regulated and did not contain the blanket ban on the use of past results. 1997 Task Force Report at 24–25, 27. The Task Force's findings were based on a multipart study, which included surveys, focus groups and data analysis, but the Report did not link its position and recommendations regarding past results advertising to any specific data or findings. See ECF No. [29–2] Exhs. 2, 3 (1997 Task Force Survey Results and Executive Summary). In 1999, the Supreme Court of Florida adopted the proposed rules. See Amendments to Rules Regulating the Florida Bar–Advertising Rules, 762 So.2d 392 (Fla.1999).

In 2004, the Bar recommended only minor changes to its rules pertaining to attorney advertising. Thereafter, in 2007, the Supreme Court of Florida directed the Bar to “undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising.” In re Amendments to the Rules Regulating The Florida Bar—Advertising, 971 So.2d 763, 765 (Fla.2007). The Bar presented its petition to comprehensively amend the rules in 2011. See ECF No. [29–3] Exh. 5, Petition to Amend the Rules Regulating The Florida Bar—Subchapter 4–7, Lawyer Advertising Rules (Jul. 5, 2011) (“2011 Petition”).

In January 2013, the Supreme Court of Florida adopted a completely revised set of attorney advertising rules as proposed by the Bar. See In re Amendments to the Rules Regulating The Florida Bar, 108 So.3d 609 (Fla.2013). The new rules for the first time permitted attorney advertising to reference past results so long as statements regarding such results were “objectively verifiable.” Rule 4–7.13, Rules Reg. Fla. Bar (2013) (the “Rules”). The Rule in question provides, in relevant part,

A lawyer may not engage in deceptive or inherently misleading advertising.... Deceptive or inherently misleading advertisements include ... references to past results unless such information is objectively verifiable ....

Rule 4–7.13(b)(2).¹ The Rules do not restrict past results statements based on the advertising medium.

The 2011 Petition and the 2013 rule amendments resulted from internal and public study, comment and deliberation. See generally 2011 Petition. The Bar concluded that the new rules were “necessary to encourage the free flow of information to the public that is necessary for the selection of a lawyer.” Id. at 8. The Bar stated that its “primary goals” in regulating attorney advertising were:

Protection of the public from false, misleading, or deceptive information by lawyers for the purpose of obtaining representation of prospective clients;

Promotion of advertising that provides information that will assist a prospective client in making an informed and meaningful decision about the prospective client's need for legal services and about which lawyer can best fulfill those needs (protecting public access to knowledge about reasonably priced quality legal services);

Protection of the public from advertising that contributes to disrespect for the judicial system, including disrespect for the judiciary;

Protection of the public from advertising that causes the public to have an inaccurate view of the legal system, of lawyers in general, or of the legal profession in general;

Enforcement that will not have an unreasonable economic impact on lawyers who provide information about legal services by methods that do not require expenditure of significant funds as compared to those who provide information about legal services by more expensive means; and

Provision of clear and simple guidelines and, to the greatest extent practicable, establishment of “bright line” standards, violation of which will likely be clear so that violation will justify the conclusion that violation was either intentional or the result of gross incompetence, thereby allowing imposition of a harsh penalty.

Id. at 9–10. Justifying the new rules permitting the use of past results in advertising, the Bar highlighted that “The U.S. Supreme Court has generally struck down regulations restricting advertising truthful information;” that “[o]f those responding to the survey on public perception of lawyer advertising, 74% indicate that past results are an important attribute in choosing a lawyer[; i]t is clear that the public wants this information available to them;” and that “[m]ost of those Florida Bar members who provided written and oral comments also noted that the lawyer advertising rules should not prohibit truthful statements regarding past results.” Id. at 13–14. The Bar further explained that “there is no reason why any communications seeking legal employment should be treated differently based upon the medium of the advertising or whether the person requested the information.” Id. at 13.

Attorneys governed by the Rules are required to submit all non-exempt advertisements to the Bar for evaluation as to rule-compliance. Rule 4–7.19, Rules Reg. Fla. Bar (2013). An attorney may obtain an advisory opinion from the Bar concerning the compliance of a contemplated advertisement, but may also begin advertising prior to Bar review. Id. Advisory opinions “are advisory only and are not the basis for action by [the Bar's] grievance committees.” Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation § 1 (2002) (“Opinion Procedures”). The Bar must advise the attorney as to its evaluation of all filed advertisement by issuing a Notice of Compliance or Notice of Noncompliance. Rule 4–7.19. The Bar may subsequently change its finding of compliance and must then provide Notification of Noncompliance. Id. A finding of compliance by the Bar is binding on the Bar in any subsequent grievance proceeding, such that a favorable opinion serves as a safe harbor, protecting the advertising attorney from discipline arising out of dissemination of the subject advertisement. Id. By contrast, the Rules provide that “[a] lawyer will be subject to discipline as provided in these rules for ... dissemination of a noncompliant advertisement in the absence of a finding of compliance by The Florida Bar.” Id. The Rules further provide that where a Notice of Noncompliance is issued, the Bar is required to “advise the lawyer that dissemination or continued dissemination of the advertisement may result in professional discipline.” Id.

Evaluation of attorney advertising submissions are handled by the Bar's Ethics and Advertising Department. Notices and opinions issued by the Ethics and Advertising Department under Rule 4–7.19 may be appealed to the Bar's Standing Committee on Advertising, and from there to the Bar's Board of Governors. Opinion Procedures §§ 3(c), 5(a).

The Bar's Lawyer Regulation Department is responsible for the investigation and prosecution of ethics complaints and...