Category: Advertising

The Floyd Abrams Institute for Freedom of Expression is a program at Yale law; yesterday it put on a symposium in New York City on “Commercial Speech and the First Amendment.” It was a surprisingly well-attended event, sold out with a waiting list; probably a couple hundred folks there.

And, of course, squarely in the sweet spot for this blog and my legal interests. I was speaking on a panel, but I found the whole program fascinating. Not only because it’s rare to be in a room with lawyers who have even heard about the commercial speech doctrine – let alone a bunch who know way more about it than I do – but also because the state of the art in understanding commercial speech law is so, so far removed from what attorney regulators do when dealing with commercial speech.

How’s that? Well, the panel before mine featured Floyd Abrams himself, along with a bunch of law professors debating the extent to which the commercial speech doctrine is getting subsumed into the strict scrutiny analysis applicable to most other forms of content-based speech regulation. No one on the panel doubted that the bar for regulating commercial speech was being raised, at least in some ways; the debate was over whether this development is a good thing.

Lawyer regulators? It’s a rare day that you even see an acknowledgement that their ability to regulate is constrained in any meaningful way by the First Amendment.

My co-panelists, Denise Esposito and Rebecca Tushnet, discussed the regulatory challenges facing the FDA and Trademark Office, respectively. In both cases, it’s a matter of generally thoughtful, restrained regulation running into a broader trend of freeing up speech in the margins.

Lawyer regulators? New York’s rules of lawyer advertising run longer than 4,000 words; they know little, if any, restraint (other than what gets forced on them by federal courts).

Judge Alex Kozinski was there, too, cracking wise and noting that the idea that free speech is just for the preservation of self-governance is “bull-pucky.” And Mary Engle from the FTC walked us through how a thoughtful, mature regulator deals with advertising regulation – something that closely approximated the polar opposite of the mechanical approach taken by state advertising regulation. In a statement that would surely shock many state regulators, she noted that many ads don’t need to be labeled “advertisement,” as it is obvious what they are. Gasp!

My only regret is that more folks from the Bars couldn’t be there. Because there is a place for attorney advertising regulation – it just needs to be approached in a manner that respects both the First Amendment rights of those speaking, and the reality that flexible approaches are often preferable to rigid rules.

Last week, I wrote about the decision of the New Jersey Committee on Attorney Advertising doubling down on compelled speech (around attorney “accolade” advertising), despite a recent Third Circuit decision noting that such regulation must be carefully and narrowly crafted in order to not offend the First Amendment.

This week brings news of a similar sort of decision out of Florida. Last year, a federal district court ruled that Florida’s prohibition on attorneys using terms such as “specialist” and “expert” to describe their practices – unless certified as such by the Florida Bar or an ABA-certified entity – violated the First Amendment. I’ve long railed on this issue; such restrictions are either lazy or overly-broad interpretations of the Supreme Court’s Peel decision (which simply noted that states can restrict attorneys from falsely stating that they’ve been certified as specialists).

So did the Florida Bar respond by getting rid of its unconstitutional restriction? Pshaw! Of course not.

Rather, the Bar’s Board of Governors has approved a slight change to its rules, adding a new section (D) to Florida’s Rule of Professional Conduct 4-7.14(a)(4):

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Translation: if you want to say that you “specialize” or have “expertise” in a particular area, be prepared to demonstrate that you’ve got the goods sufficient to be certified by the Bar  . . . assuming the Bar chose to have a certification in your area. How you’d demonstrate that is anyone’s guess.

And if you want to use one of these words to describe your abilities with respect to an area the Bar DOES certify (which includes such broad areas as “civil trial,” “real estate,” “business litigation,” and “criminal trial”), you’re compelled to include a self-abnegating disclaimer.

Why the Bar didn’t take the Court’s strong direction and just get rid of its rule is anyone’s guess. Nothing would have prevented it from so doing while still aggressively going after any attorney who either a) falsely claimed expertise or b) falsely claimed to be certified as a specialist. Either is a form of misleading advertising, easily sanctioned under even the most basic of attorney advertising rules (ABA Model Rule 7.1, which is, honestly, all the attorney advertising regulation we really need).

Will this new rule survive First Amendment scrutiny? The answer is almost certainly no, for the same reasons the court showed the Bar the back of its hand on the last go-round. But until that happens, Florida lawyers will have to think about regulation even when making commonplace expressions of competence.

h/t Joseph Corsmeier

The New Jersey Supreme Court Committee on Attorney Advertising recently released a “Notice to the Bar” regarding attorney “accolade” advertising: the touting by attorneys of various awards they might have received (including, presumably, their Avvo Ratings).

The Notice goes on at some length regarding the appropriateness of publicizing such awards, and the disclaimer requirements the Committee imposes on any such advertising. What do these disclaimers look like? The Notice contains a helpful example:

For example, a reference to the Super Lawyers accolade should provide:

“Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection process detail.html. No
aspect of this advertisement has been approved by the Supreme Court of New Jersey.”

So if you’ve been named a “Super Lawyer,” and you want to let people know, the New Jersey bar regulators want you to include a lengthy disclaimer, including a little pursed-lips head-shake noting that Supreme Court does not approve, not one bit.

This is, to put it mildly, ludicrous. It’s also unconstitutional: there are limits to the state’s ability to compel speech in the form of mandatory disclaimers.  And although the way these limits apply is a little more complicated than a straightforward commercial speech analysis, as a general rule compelled disclosures must be necessary to:

• Cure otherwise-misleading advertising, or
• Protect consumers from unwitting harm, or
• Advance some other significant government interest.

Such mandatory disclosure requirements must be, like all commercial speech regulations, narrowly tailored.

Does the New Jersey Supreme Court’s requirement meet any of these requirements? Of course not. There’s nothing misleading about an attorney stating truthfully that a third party has bestowed an award. To the extent anyone wishes to dig into the methodology behind that award, such data is typically available online in a few mouse clicks.  And there’s no significant government interest here; rather, it’s just the Committee’s distaste for accolades, and its attempt to make it too cumbersome to advertise such things.

And here’s the kicker: the Committee really should know better, because a federal court smacked it back on a very similar issue less than two years ago. In finding that the Committee’s disclosure requirements around advertising laudatory quotes from judicial opinions was unconstitutional, the Third Circuit noted:

“Guideline 3 as applied to Dwyer’s accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring Dwyer to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception. To the extent the excerpts of these opinions could possibly mislead the public, that potential deception is not clarified by Guideline 3. In any event, what is required by the
Guideline overly burdens Dwyer’s right to advertise.”[ref]Dwyer v. Cappell, 762 F.3d 275, 284 (3rd Cir. 2014).[/ref]

And the rule here re disclaimers on accolade advertising? I’d say it ticks all three boxes: not reasonably related to preventing consumer deception, not directly advancing an important government interest, and overly burdening the right of lawyers to advertise.

It would be nice if the New Jersey Committee on Attorney Advertising learned from its past overreaching. And it would great if it could show some respect for the ability of the public to weigh and discern the meaning of legal accolades. But that kind of balanced thinking doesn’t seem to be in the cards.

h/t ABA Journal

Sometimes I feel like I pick on Florida, but the Sunshine State just continues to offer up an unending stream of lawyer advertising regulation problems. This week’s entrant? The Jacksonville firm of Johns & Von Roenn‘s ill-timed ad directed at the families of sailors lost on the El Faro, the freighter that went missing off Florida in Hurricane Joaquin (“ill-timed” because the ad apparently ran the same day the Coast Guard announced it was calling off the search for survivors).

The Bar wasted no time opening an investigation into whether the lawyers complied with Florida’s review-and-approval process for lawyer ads. And two former Bar presidents denounced the ad, stating:

Regardless of whether this ad violates the Advertising Rules of The Florida Bar, it is offensive to the public and to the overwhelming majority of lawyers. It is an embarrassment to our profession that a lawyer would attempt to profit from a tragedy such as this.

Look, it’s not hard to see the potential for offensiveness here. But the Bar can’t regulate attorney advertising for tastefulness – that battle was decisively lost nearly 40 years ago, in Bates v. Arizona. Yet they continue to fight it, with statements like this and tastefulness regulation-by-proxy through the advertising review commission.

I understand the impulse to want to protect the profession from the money-grubbing, mercenary image that our advertising too often projects. But it’s not just the fact that the law is crystal-clear here. There’s also the fact that, in our rush to burnish our professional image, we’re neglecting the real interests of potential clients.

Let’s dispense with the pearl-clutching and get to the truth:  most lawyers, like most doctors and dentists, profit off of human misery. We do so because we offer skills and services that, hopefully, help people navigate through all manner of darkness to a better outcome than they would have reached without our help.

So are we, out of narcissistic self-interest, going to regulate away the right of those people, those potential clients, to get information about their legal rights? Attorney Chris Johns, who ran the offending ad, puts it well:

I can guarantee you that TOTE [the company that owned El Faro] and their executives and their team of attorneys met prior to giving their one-sided, unilateral news conferences.  I certainly believe the family members of the crew should have the same benefit of legal counsel and the same benefit of experience as TOTE has.

Well, yeah. They should. And while mass advertising may not be the highest-and-best way to choose counsel, it remains the primary way that the public begins the process of getting informed about their legal rights.

It’s fine for attorneys to take Johns & Von Roenns to task; shame and opprobrium from fellow members of the bar is probably the most effective (and the only legally-sound) way to regulate tastefulness in advertising. The Bar sure as hell shouldn’t be doing it, either directly or through the technicality of the advertising review board (which is itself an institution long-overdue to be consigned to the dustbin of history).

But even then, if you’re a lawyer who finds this kind of advertising offensive, ask the question: is our professional image more important than the interests of the public that needs our services?

FINALLY – a federal court has ruled on a particular bugaboo of mine: the completely-asinine restriction that many states have on lawyers using the verboten terms “expertise” and “specialty.”

In finding that’s Florida’s rule violates the First Amendment, Federal District Court Robert Hinkle noted:

It should be noted, too, that the Bar’s approach is unlikely to solve the problem it posits. The Bar readily allows a lawyer to assert that the lawyer handles only cases of a specific kind. So a lawyer can say personal-injury cases are all the lawyer handles, or that personal-injury cases are the lawyer’s business. The Bar apparently believes that a potential client will attribute a different meaning to these assertions than to the assertion that a lawyer specializes or has expertise in personal-injury cases. But the Bar has offered no empirical or even anecdotal support for the supposition. When First Amendment rights are at stake, such an unsupported (and indeed unintuitive) supposition will not do.

Bravo. And big kudos to the attorneys at Searcy Denney Scarola Barnhart & Shipley for taking this one on. While it’s understandable that not every attorney wants to be the test case for the constitutionality of their state’s ad rules, it’s great to see a law firm stand up for the rights of lawyers and the public alike.

The Florida Bar has once again been stymied in an effort to (slightly) liberalize its advertising rules.

Four years ago, it was the Florida Supreme Court redlining the Bar’s lawyer website rules, resulting in what I like to call the “Florida Law Firm Website Developer Full Employment Act” – an enactment which is still being litigated.  And now the court has rejected the Bar’s approach to lawyer referral services, holding that lawyers in the Sunshine State simply flat-out can’t work with lawyer referral services that aren’t owned by lawyers.

The putative target of the court’s ire is outfits like “Ask Gary,” a lawyer-and-doctor referral service that has been no stranger to controversy and allegations of fraud. And as the court points out, there may be some problems with these services, which channel callers to participating medical and legal providers:

[S]ome referral services have used advertising to disguise direct
solicitations; some patients, in filling out purported medical care paperwork, have unknowingly signed undisclosed and unexplained law firm retainers; and some patients, unhappy with their medical treatment at a referral clinic, have gone to their referral-designated lawyer for help, only to be told—even in situations where the lawyer was already seeking [personal injury protection] benefits for them from an insurance company—that the lawyer could not help them because the lawyer represents the clinic.

OK, so that’s not good.

The Florida Bar Special Committee on Lawyer Referral Services proposed a number of regulatory changes, including limitations on accepting and making cross-referrals with doctors for the same accident. The Bar didn’t accept these proposals, instead proposing a lighter set of regulations.

The Supreme Court was not impressed. It responded by backhanding the Bar, saying that Florida lawyers simply can’t work with lawyer referral services that aren’t owned by Florida lawyers. Period.

That’s pretty big smackdown.

Now, it certainly wouldn’t be outlandish to ask whether the Florida Supreme Court got so churlish that it exceeded its power to limit lawyer speech. Likewise, it might be fair to inquire about what’s so special about lawyer-owned referral services (other than the Bar’s regulatory leverage over their owners) that keeps them from having the same problems the court identifies with the “Ask Gary”s of the world.

But whatever – I have a more parochial concern: the fact that some hand-wringing lawyers will invariably perceive this decision as suddenly preventing Florida attorneys from working with Avvo.

So if you’re wondering the same thing, here’s the simple answer: It doesn’t.

Why? Because Avvo isn’t a lawyer referral service.

I’ve written about this before, but I will summarize it again here: a “lawyer referral service” vets a potential client’s concern and refers that person to a specific attorney. The problem is in the “vetting:” many such services market themselves as “matching” clients with the right lawyer. Many potential clients no doubt think that means that their unique needs are being lined up with the best possible participating attorney . . . rather than being sent to whichever lawyer has “bought” that lead.

It’s easy for that kind of marketing approach to cross into consumer deception, and that’s why some level of regulation may be appropriate.

Now, someone might go read Florida Rule of Professional Conduct 4-7.22(c), which defines “lawyer referral services,” and say, “that’s a pretty broad definition – why shouldn’t that include Avvo?”[ref]

(c) Definition of Lawyer Referral Service. A “lawyer referral service” is:
(1) any person, group of persons, association, organization, or entity that receives a fee or charge for referring or causing the direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of lawyers; or
(2) any group or pooled advertising program operated by any person, group of persons, association, organization, or entity wherein the legal services advertisements utilize a common telephone number or website and potential clients are then referred only to lawyers or law firms participating in the group or pooled advertising program.[/ref]

You’d have to squint pretty hard to get that to apply to any of the products and services Avvo provides. And remember: advertising regulations can’t be read broadly. The state has the burden of showing that its regulation is both necessary and no more extensive than necessary – which means these regulations must be read narrowly. And I have to imagine that the members of the Florida Supreme Court are smart enough, and well-versed enough in constitutional law, to know that they can’t promulgate a rule that would purport to obviate any-and-all lawyer participation in non-lawyer owned advertising programs.

Because that would be crazy – and contrary to 38 years of well-established First Amendment law.

I’ll further note: Florida’s rules distinguish between “lawyer referral services” and “lawyer directories,” which are defined in Rule 4-7.23(a) as:

A lawyer directory is any . . . entity that receives any consideration . . .  for publishing a listing of lawyers together in one place . . . in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers.”

Now, I won’t comment at this point about the overreach of this particular rule, but the fact that it (along with the rest of Florida’s extensive advertising regulation) exists show that the Florida Bar considers referral services to be a distinct subset of lawyer advertising.

So I don’t think the Florida Bar will get confused about this, but some lawyers might, so I wanted to lay this all out here.

However, if the Bar wants to use this opportunity to tighten up its definition of a “lawyer referral service,” that wouldn’t be such a bad thing . . .

Oh, Florida.

Let me get this out of the way first: I don’t think lawyers soliciting clients via text message is very effective. It probably comes across as amateurish and cheesy. And if a law firm isn’t very, very careful, text solicitation risks running afoul of the well-intentioned-but-stinking-turd of a regulation that is the Telephone Consumer Protection Act.

Which is a very bad thing indeed.

But text messages are direct solicitation? The direct solicitation that can only constitutionally be prohibited if it rises to the level of intrusiveness and undue influence found in a personal interaction with a trained advocate?

That’s what the Florida Standing Committee on Advertising decided,  voting 6-1 to treat text messages as prohibited direct solicitation. In so doing, the Committee had a series of amusing exchanges about the relative use cases for text messages and mobile phones, but apparently did not consider – at all – the constitutional issues involved.

I mean, it’s not like the Supreme Court hasn’t weighed in on the acceptable contours of prohibiting attorney solicitation on four separate occasions, the last of which involved a Florida regulation.

I haven’t got any great interest in seeing solicitation-via-text. But is it too much to expect that bar regulators look to the constitutional limits on their authority, rather than acting like they regulate in a vacuum?

Update 9/10/15:

The board of bar governors in Florida has reversed the Ad Committee, clearing the way for attorneys to solicit via text messages . . . as long as Florida’s cumbersome attorney advertising rules are complied with.

Yay for a Bar paying attention to the first amendment!

But just because it’s allowed doesn’t mean it’s a good idea. And unless you’ve got a very clear bead on 1) your ROI and 2) how you’re going to navigate TCPA compliance, marketing via unsolicited text messages is a horrible idea.