Rubenstein v. Fla. Bar
| Decision Date | 20 November 2014 |
| Docket Number | Case No. 14–CIV–20786. |
| Citation | 69 F.Supp.3d 1331 |
| Court | U.S. District Court — Southern District of Florida |
| 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. |
Gregory A. Beck, Gupta, Beck, PLLC, Washington, DC, Robert Kent Burlington, Daniel Frederick Blonsky, Coffey Burlington, Miami, FL, for Plaintiff.
Barry Scott Richard, Michael Howard Moody, Greenberg Traurig, Tallahassee, FL, for Defendant.
This matter is before the Court upon the Motion for Summary Judgment, ECF No. [30] (the “Motion”), filed by Defendants The Florida Bar and Arlene K. Sankel (“Defendants” or the “Bar”). Plaintiffs Robert Rubenstein and Rubenstein Law, P.A. (“Plaintiffs” or “Rubenstein”) timely responded. ECF No. [36] (the “Response”). The Court has reviewed the Motion, all supporting and opposing filings and submissions, and the record in the case. For the reasons that follow, Defendants' Motion for Summary Judgment is DENIED.
Through this action, Plaintiffs challenge, on First Amendment grounds, certain rules and guidelines concerning attorney advertising designed and implemented by the Bar and seek injunctive and declaratory relief.
In January 2013, the Florida Supreme Court 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 2013 rule amendments resulted from extensive internal and public study and deliberation. In 2007, following the Bar's 2004 recommendation of only minor changes to its rules pertaining to attorney advertising, the Florida Supreme Court 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] (“2011 Petition”). The new rules for the first time permit attorney advertising to reference past results so long as statements regarding such results are “objectively verifiable.” Rule 47.13, Rules Reg. Fla. Bar (2013) (the “Rules”). The Rules do not restrict past results statements based on the advertising medium.
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,” and where a Notice of Noncompliance is issued, require that the Bar “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 violations of the Rules, including those regulating attorney advertisement. The Ethics and Advertising Department has no separate authority to commence disciplinary investigations or proceedings. ECF No. [31–3] (“First Tarbett Decl.”) ¶ 3. According to the Director of the Lawyer Regulation Department, the Department “does not investigate failure to abide by advertising guidelines or advisory opinions issued by the Ethics and Advertising Department of the Bar and does not initiate disciplinary proceedings based upon failure to follow guidelines or advisory opinions.” ECF No. [31–7] (“Berry Decl.”) ¶ 2.
Relying on the newly amended Rules, Plaintiffs developed, at great expense, a comprehensive advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. Tarbett Decl. ¶ 5. The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. Id. ¶ 5. Critically, the Bar's notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against “false and misleading” attorney advertising. See ECF No. [31–4] at 7–9 (“May 2013 Letter”).
In early 2014, the Bar's Board of Governors issued new “Guidelines for Advertising Past Results.” ECF No. [29–3] Exh. 6 (“Guidelines”). The Guidelines were issued “to assist lawyers in complying with these requirements [the relevant Rules] when advertising past results.” Id. The Guidelines provide that:
The inclusion of past results in advertising carries a particularly high risk of being misleading. Such advertising will require the inclusion of more information than most types of advertising in order to comply with Rules 4–7.13(a)(2) and 47.14(a). Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not issue a notice of compliance for advertisements in such media that include references to past results.
Id. The Guidelines also contain specific restrictions and instructions regarding, for example, advertising dollar amounts and aggregating past results. Id.
Shortly following issuance of the Guidelines, the Bar notified Plaintiffs that it had withdrawn its prior approval of multiple advertisements. See ECF No. [31–1] (“Withdrawal Letter”). The Withdrawal Letter explained that “subsequent to the issuance to you [Plaintiffs] of the prior opinion, the Florida Bar Board of Governors issued guidelines on interpretation of Rule 4–7.13(b)(2) regarding past results.” Id. at 1. The Bar then stated that:
The Board of Governors has directed staff to withdraw the Florida Bar staff's advisory advertising opinion that was previously issued ... only as to past results. The remainder of the prior Florida Bar staff advisory advertising opinion remains in effect. The Florida Bar staff advisory advertising opinion is that the advertisement(s) do not comply with the new past results guidelines adopted by The Florida Bar Board of Governors and therefore do not comply with Rule 47.13(b)(2) ....
Id. at 1. The Withdrawal Letter further instructed that Id. at 3. It advised that “[u]se of an advertisement that does not comply with the lawyer advertising rules past the time period noted above [of thirty days] may result in disciplinary action,” but explained that “[t]his letter does not constitute disciplinary action, nor does it mean that the bar has opened an investigation.” Id. at 4.
Plaintiffs did not undertake any appeals procedures regarding the Bar's withdrawal of its compliance opinion. Rather, they initiated this action in March 2014. Plaintiffs have continued to disseminate the subject advertisements.
In June 2014, the Bar notified Plaintiffs that they were alleged to have violated the Rules regarding attorney advertisement, and that the matter had been referred to Bar counsel “to initiate disciplinary proceedings.” ECF No. [29–3] Exh. 8 (“June 2014 Letter”). The Bar's June 2014 Letter specified the same advertisement language identified in the Withdrawal Letter, and paired it with violation of the Rules' regulation of statements regarding past results. Id. Less than an hour before filing the instant Motion, the Bar notified Plaintiffs via email that it had “closed” the in the pending disciplinary case against them.1
Sometime after both the adoption of the revised Rules and the Bar's issuance of the Guidelines—exactly when is not clear from the record—the Bar “engaged the services of Frank N. Magid Associates, Inc. to conduct a consumer research survey to determine whether attorney advertisements containing references to recoveries for clients in large dollar amounts are misleading to the average consumer and, if so, how effectively the misleading nature of the advertisements can be mitigated by the use of disclaimers.” ECF No. [3...
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