Hello everyone and welcome to this Ethics Alert blog which will discuss the recent federal lawsuit which was filed in the U.S. Northern District of Florida by the law firm of Searcy, Denney et al and their named partners challenging the constitutionality of the 2013 amended Florida Bar advertising rules. The case style is Searcy Denney et al v. The Florida Bar et al. The Complaint is here: https://guptabeck.com/wp-content/uploads/2013/12/Sercy-v-Fla-Bar-Cmplt.pdf.
The lawsuit was filed on or about December 10, 2013 against The Florida Bar in the United States District Court, Northern District of Florida alleging that certain of the Bar’s lawyer advertising rules are unconstitutional. The lawsuit was filed because of the Bar’s application of the lawyer advertising rules to law firm websites and blogs along with the recent informal staff opinion addressing the listing law firm “specialties” on LinkedIn.com (which was recently revoked by the Bar’s Board of Governors). The law firm and lawyer plaintiffs requested that the court to declare unconstitutional and enjoin enforcement of the requirement in Bar Rule 4-7.13 that statements in lawyer advertisements be “objectively verifiable” and the prohibition in Bar Rule 4-1.4 on a lawyer (or law firm) stating or implying that the lawyer specializes in or has expertise in an area of law such as on LinkedIn pages.
The lawsuit states as follows: “According to the Bar, Searcy Denney’s website and blog violate a rule requiring statements to be ‘objectively verifiable’ because the websites express opinions on issues of public concern, including statements that the days ‘when we could trust big corporations … are over,’ that ‘(g)overnment regulation of … consumer safety has been lackadaisical at best,’ and that ‘when it comes to ‘tort reform’ there is a single winner: the insurance industry.’ The Bar also found garden-variety statements about the firm’s services and past cases to be ‘inherently misleading’ because the statements do not include all ‘pertinent’ facts of each case, while at the same time refusing the firm’s requests to clarify what facts the Bar considers pertinent. And it concluded that the firm’s pages on the social-media site LinkedIn.com violate several of the rules’ provisions because-among other things-LinkedIn automatically lists the firm’s ‘specialties’ and includes an unsolicited review posted by a former client.”
The lawsuit alleges that the cited advertising rules on their face and as applied by The Florida Bar violate the First Amendment of the U.S. Constitution and that the rules are void for vagueness under 42 U.S.C. § 1983. The lawsuit requests that Rules 4-7.13 and 4-7.14 be declared unconstitutional and the Bar be enjoined from enforcing them and that the plaintiffs be awarded attorney’s fees, costs, and expenses under 42 U.S.C. § 1988.
Bottom line: As I reported in my recent Ethics Alert blog, The Florida Bar’s Board of Governors (BOG) revoked the staff opinion on LinkedIn and authorized the Advertising Committee to draft an opinion addressing LinkedIn issues and approved guidelines for lawyers publishing past results. The fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant and it will be interesting to see how this lawsuit proceeds in the federal court in the Northern District of Florida. Stay tuned…
…and let’s be careful out there!
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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