Blasting the Florida Bar, a federal judge threw out state ethics rules that ban the use of past results in lawyer advertising in indoor and outdoor display, television and radio media. The court held that the rules were unconstitutional and in violation of the First Amendment.
The landmark ruling on December 12, 2014, is a complete rejection of the Florida Bar's obstinate efforts to suffocate lawyer advertising in a state with 68,500 attorneys. The court granted the plaintiff law firm's motion for summary judgment, and went on to enjoin the Bar from enforcing Rules 4-7.13 and 4-7.14, which said use of past results is misleading.
U.S. District Judge Beth Bloom in the Southern District of Florida ruled in Robert Rubenstein v. The Florida Bar, Case No. 14-CIV-20786-BLOOM/Valle. The court followed a ruling by the Fifth Circuit in Public Citizen Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 218 (5th Cir. 2011), which held unconstitutional a Louisiana prohibition on past results attorney advertising.
Lambasting the Bar
In a harsh opinion, the court threw the Florida Bar's own research in its face:
74% of ordinary citizens indicated that past results are an important attribute in choosing a lawyer -- "it is clear that the public wants this information available to them”
Most of those Florida Bar members who provided comments also noted that the lawyer advertising rules should not prohibit truthful statements regarding past results.
"The Bar has presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests its Rules were designed to promote. The burden here is the Bar’s, and it has failed to meet it," the court said.
The plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. The ads include a TV segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board. With an attorney voice over, it depicts the words:
“COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR!
Gross proceeds. Results in individual cases are based on the unique facts of each."
State Bar Flip Flop
At first the Bar issued an opinion that some of the advertisements complied, and others didn't, with the ethics ban on use of past results. Then the Bar changed its mind in 2014, issuing a withdrawal letter, saying that the ads violated ethics rules. It threatened to hold the law firm up for disciplinary action.
Undeterred, Rubenstein ran the ads anyway, and in early 2014 the Bar notified him the it had referred the matter to Bar counsel to initiate disciplinary proceedings. Rubenstein filed suit in March.
The Bar claimed the rules were designed:
- To protect the public from misleading or deceptive attorney advertising.
- To promote attorney advertising that is positively informative to potential clients.
- To prevent attorney advertising that contributes to disrespect for the legal system and thereby degrades the administration of justice.
Ruling totally in favor of the law firm, the court ruled there is First Amendment protection for lawyer advertising as commercial speech. It noted that the ethics rules in 44 states impose no blanket restrictions on references to past results.
It noted that the US Supreme Court’s decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable.
"Regulations which seek to restrict advertising often “assume that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information.”
State Bar Weasels
The court bashed the Bar for being weasels in its defense of the advertising ban:
- Less than an hour before filing its own motion for summary judgment in this case, the Bar notified the plaintiffs via email that it had “closed” the “case file” in the pending disciplinary case against them. Fearing it would lose, the Bar attempted to remove the underlying issue before the federal court. Despite the slick move, the court determined that plaintiffs’ claim was justiciable.
- "The Bar’s statements of fact on this issue are directly contradicted by the record evidence before the Court."
- "The Bar’s declaration...is misleading."
- "The Bar has presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests."
- "The record evidence accumulated by the Bar actually undermines its position."
- "The burden here is the Bar’s, and it has failed to meet it."
- "Whatever the merits of the Bar’s “concern,” this alone is woefully insufficient..."
- "The Bar’s interest in supporting its position with actual evidence does too little, too late."
Legal precedents are now in place to eliminate the remaining bans on advertising past results in Missouri, New Mexico, New York, South Dakota, Texas and Virginia.