Hello and welcome to this Ethics Alert which will discuss the Guidelines for Advertising Past Results which were approved by the Florida Bar’s Board of Governors (BOG) on December 13, 2013 (and revised on 1/17/14) as well as the decision of the Bar’s Standing Committee on Advertising to disapprove 15 and 30 second television advertisements which advertised past results at its January 23, 2014 meeting (as reported in the February 15, 2014 issue of The Florida Bar News). The guidelines state that the Bar “generally will not approve” billboard and television and radio advertisements since they “do not lend themselves to effective communication” of the disclaimers that are required under the revised lawyer advertising rules. The Bar guidelines for past results are on The Florida Bar’s website www.floridabar.org.
The Guidelines for Advertising Past Results were initially approved by the Bar’s Board of Governors at its December 13, 2013 meeting and, inter alia, restrict references to past results in billboards and other such display advertisements and television and radio advertisements. The guidelines state:
Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results. Although the revised advertising rules permit lawyers to advertises past results with disclaimers and adequately explain the context, the guidelines state that these disclaimers may not be adequate when the advertisement is on a billboard or in a TV or radio spots.
The Bar guidelines also state that any amount claimed to have gone to a client in an advertisement in an “acceptable” advertising medium must be the net amount and, if the client received a structured settlement, the amount must be the value in current dollars. The guidelines also state that, unless the advertising law firm can show an exception, any advertisement that includes a dollar amount award must have the following disclaimer: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result”.
The guidelines for past results also state: “An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2). The following are examples of ads that would be a violation:
Advertising that the lawyer obtained a $1 million judgment without disclosing that the fees and costs exceeded the amount of the judgment or that the court issued a $500,000 remittitur.
Advertising that the lawyer obtained a $1 million judgment without disclosing that the defendant offered to settle for $2 million.
Advertising a success at trial without disclosing that the judgment was overturned on appeal.
Advertising a success percentage without disclosing material limitations on the types of cases accepted. (E.g., advertising a percentage of success in traffic ticket cases without disclosing that the percentage only includes minor infractions by first-time offenders.)
Advertisement by a criminal defense lawyer that an acquittal on one or more charges was obtained without disclosing that the client was convicted of other crimes in the same case.
The guidelines also state that lawyers cannot claim to have “won” in a case when there are opposing claims or mixed results or if the judgment amount was substantially less than sought or less than a settlement offer:
Results should not be characterized as wins unless such a characterization is not debatable. The following are examples of ads that would be a violation:
Advertising a case as a win when there were opposing claims and mixed results.
Advertising a case as a win when the judgment was for substantially less than was sought or less than a settlement offer.
According to a February 15, 2014 Florida Bar News article, at its January 23, 2014 meeting, the Bar’s Standing Committee on Advertising (SAC) disapproved 15 and 30 second television advertisements proposed by an Orlando law firm and upheld the advertising staff’s finding that they did not comply. The law firm’s lawyer claimed that the advertisements met the rule and guideline standards since they disclosed net award amounts to the clients and; therefore, accurately reflected the actual amounts received by clients. The advertisements also had a written disclaimer: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.” The lawyer also stated that the rules as interpreted by the guidelines may be unconstitutional. The SCA voted to find noncompliance because of its uncertainty on how to apply the guidelines and pending guidance from the BOG.
During the SCA’s discussion of the Orlando firm’s advertisements, Elizabeth Tarbert, Bar Advertising Counsel, reported that Bar staff, at the BOG’s direction, had reviewed several hundred advertisements which had been approved since the new Bar advertising rules went into effect which contained past results. Ms. Tarbert said that several hundred did not comply with the guidelines and the affected law firms would be notified.
The article also states that when the BOG approved the guidelines, it decided that law firms with advertisements which were previously approved but did not meet the new guidelines would be given a reasonable amount of time to remove or change the advertisements. According to the article, around 350 advertisements from about 70 different law firms previously approved by the Bar may no longer be allowed under new advertising guidelines. The Bar is sending between 90 and 100 letters to lawyers or law firms who had submitted advertisements to the Bar under new advertising rules and were told either that the ads complied with the new rules or would comply if certain changes were made.
Bottom line: The guidelines for past results were a response to complaints about lawyer billboards and TV and radio advertisement advertisements which contained statements from clients such as “my lawyer got me $$$$ (fill in the number)”. The SCA applied the rules and guidelines and disapproved the advertisements but asked for further guidance. Stay tuned for the continuing saga of the interpretation of, and challenges to, the 2013 revised Bar Advertising Rules…
…and let’s be careful out there!
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
Am I reading this wrong or does it really sound like a bunch of subjective analysis will be done by the Florida Bar when reviewing each law firm’s advertising? If so, it would seem that the Florida Bar might be less willing to aggressively pursue enforcement against a big law firm which has the time and money to raise constitutional issues as opposed to a small firm that can ill afford protracted litigation with the Bar over advertising interpretations. Can’t we just have some objective black and white rules on advertising? Surely, other state Bars have addressed these issues? Why do I continually hear at national CLEs that Florida continues to have the most restrictive rules on attorney advertising of any state Bar? Practicing law today is hard enough and far less rewarding financially than in years past; do we really need to make it ever more difficult to function in a world that requires that an attorney be media savvy? The days of merely hanging out a shingle and making a living for a single practitioner a long gone.