“Past Results” Ban in Florida Tossed

Really interesting decision in the case of Rubenstein v. The Florida Bar, in which federal district judge Beth Bloom granted attorney Robert Rubenstein’s motion for summary judgment against the bar AND enjoined the Bar from further enforcing its rules banning the use of references to past results in many forms of attorney advertising.

Law Practice Advisor has the details, but in reading the decision I was struck by how completely unimpressed Judge Bloom was with the Florida Bar’s position. She absolutely eviscerated the Bar for its utter lack of empirical evidence to support its ban, as well as its failure to consider any more narrowly-tailored remedies.

And for First Amendment law junkies, there’s this: while Rubenstein positioned his case as an “as applied” challenge – which is much easier to win, but has the disadvantage of not extending beyond the particulars of the plaintiff’s case – Judge Bloom took it upon herself to style it as a facial challenge. She then went on to show how the Bar’s rules were fundamentally unconstitutional, no matter how they were applied.  BAM!!

This isn’t necessarily the end of these rules, as the state could theoretically rebuild them with proper evidentiary support and deference to their obligation to regulate in a narrowly-tailored way.

Or they could appeal, but that’s a long shot – the good Judge issued a a very complete and well-thought-out ruling.

This decision is a great step toward a simple yet elusive concept: that Bar regulators should only limit speech where it is necessary to do so, and only to the extent of that necessity.

And ultimately, what’s most damning to the Florida Bar’s position is this: the data shows, unsurprisingly and overwhelmingly, that consumers really want to know what kind of results attorneys get. The Bar should take this message, get out of the way, and let that happen.

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