Hello everyone and welcome to this JACPA Ethics Alert blog which will discuss recent Florida Bar Statewide Advertising Committee decisions on advertising issues. Since I haven’t discussed lawyer advertising recently, I am sure you all are thankful for the change, right?
The Statewide Advertising Committee decided that a law firm advertisement may not use an actor portraying a judge (presumably in a robe) who recommends the law firm, even with a disclaimer. The actor portraying the judge was included in a television advertisement which was sent to the Bar for review by a law firm which handles traffic ticket matters. The proposed advertisement would also have included a disclaimer stating that the person portraying the judge was an actor, not a “real” judge.
According to The Florida Bar News, members of the statewide committee voiced concerns since the actor portraying the judge would be recommending the law firm, which would be prohibited by the Florida Canons of Judicial Conduct. The lawyer who submitted the advertisement argued that the committee had previously allowed actors to portray police officers in advertisements. The lawyer also said the disclaimer eliminated any chance the public would be misled to believe that the actor was “real” judge. The Bar Advertising staff had concluded that the advertisement was misleading since it portrayed an event “that will not occur.” After discussions, the committee voted 2-1 to uphold the Bar advertising staff’s recommendation. According to the Bar News, the lawyer who submitted the advertisement said that he will appeal to the Bar’s Board of Governors, and, if he is unsuccessful there, he may pursue a remedy in the federal court.
The statewide committee also decided that a former judge is prohibited from using the title of “retired circuit judge,” “private judge,” or “trial resolution judge” in advertisements for the former judge’s practice, which includes the former judge’s availability to sit as a private judge as permitted by state law. The former judge/lawyer inquired about using the three different titles as part of his advertising and the committee voted 3-0 upheld the Bar staff’s recommendation to prohibit the use of any of the titles.
In other matters, the statewide committee agreed with Bar staff that a letter from a law firm offering to send recipients a “safety magazine,” which was also prepared by the law firm and that advertises the firm’s services, is a direct mail solicitation and must comply with the appropriate Bar rules. Finally, the committee split on whether a lawyer referral service which has purchased the naming rights to a radio station must identify itself as a referral service if its name is used as part of the station identification during FCC required station breaks.
Bottom line: These decisions are recent examples of the continuous “struggle” to balance various constitutional protections (including freedom of speech) with the regulation of lawyer advertising and I am sure there are those on both sides of these decisions! We are also still waiting on the Florida Supreme Court to issue an opinion on the Bar’s proposed comprehensive revisions to the lawyer advertising rules.
…be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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