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Federal District judge finds that Florida Bar rules prohibiting past results as applied by the Bar violate First Amendment and enjoins enforcement

Hello everyone and welcome to this Ethics Alert which will discuss the recent (12/8/14) Federal Southern District Judge’s opinion which granted summary judgment against The Florida Bar and enjoined the Bar from enforcing its guidelines regarding past results in attorney advertising in indoor and outdoor display, television and radio media as a violation of the First Amendment. The order/injunction is in the case of Robert Rubenstein v. The Florida Bar, Case No. 14-CIV-20786-BLOOM/Valle (SD Fla. 12/8/14). The order is here:

As background, a Florida lawyer filed a federal lawsuit in the Southern District of Florida against The Florida Bar challenging the constitutionality of the guidelines which prohibited his use of past results and subsequently filed a motion for summary judgment. In an Order/injunction dated December 8, 2014, Federal Southern District Judge Beth Bloom granted summary judgment in favor of the Florida lawyer and ruled that the Florida Bar rules prohibiting the use of past results in lawyer advertising as applied by the Bar’s guidelines were unconstitutional and violated the First Amendment of the U.S. Constitution.

According to the Order/injunction, “Relying on the newly amended (2013 Bar) Rules, Plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. (citation omitted). The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. (citation omitted)”

“Plaintiffs’ advertisements include, for example, a television segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting 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 case.’ (citation omitted). Critically, the Bar’s notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against ‘false and misleading” attorney advertising. (citation omitted)’

The Bar’s Board of Governors approved guidelines related to past results in early 2014 and the Bar subsequently sent notice to the plaintiff/lawyer in this case (as well as other Florida lawyers) which stated that their previously approved advertisements were in violation of the advertising rules and required the advertisements to be removed from the media.

The Order/injunction states “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 Order concludes that “The Bar has failed to demonstrate that the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines advance a substantial governmental interest, or that the those restrictions are not more extensive than necessary to serve that interest.” “The Bar is ENJOINED from enforcing Rules 4-7.13 and 4-7.14 as restated in the Guidelines to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.”

In response to the federal District Judge’s order and injunction, the Bar’s Board of Governors has repealed the guidelines on using past results in indoor and outdoor display, radio, and television advertising; however, the Board has indicated that such advertisements must still be objectively verifiable and make no material omissions.

Bottom line: This is certainly a (preliminary) victory for the lawyer/plaintiff in this case with regard to the Bar’s guidelines for advertising past results and the application of the Bar rule and it is not known at this time whether the Bar will appeal the Summary Judgment Order. Stayed tuned…

…and be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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
[email protected]

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