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Florida Bar will not appeal Federal judge’s order enjoining enforcement of past results rule as applied by Bar guidelines

Hello everyone and welcome to this Ethics Alert with an update on the December 8, 2014 Federal Judge’s opinion which enjoined The Florida 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 (U.S.S.D. Fla. 12/8/14).

As I reported in my 12/18/14 Ethics Alert blog, a Florida lawyer (Rubenstein) filed a federal lawsuit in the Southern District of Florida against The Florida Bar challenging the constitutionality of the Bar’s guidelines prohibiting the use of past results in lawyer advertising in indoor and outdoor display, television and radio media. The lawyer filed a motion for summary judgment and, in her Order/injunction dated December 8, 2014, Federal District Judge Beth Bloom granted a 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.

In response to the federal District Judge’s order and injunction, the Bar’s Board of Governors repealed the guidelines on using past results in indoor and outdoor display, radio, and television advertising; however, the Board has indicated that such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.

According to a recent ABA online article: “’The bar will not appeal,’ says Barry Richard, a shareholder at Greenberg Traurig in Tallahassee who was lead attorney for the bar in Rubenstein. ‘The board of governors has repealed the rule that was at issue.’”

The ABA article also states: “Deepak Gupta, the founding principal of Gupta Beck in Washington, D.C., which represented Rubenstein, says, “This decision is likely to have a major national impact. It says to state bar regulators across the country: ‘Don’t try this at home. If you’re considering emulating Florida’s restrictive approach, you will face a First Amendment challenge and you will lose.'” The ABA article is here: https://www.abajournal.com/magazine/article/federal_court_strikes_down_florida_bar_restrictions_on_lawyers_citing_past

Bottom line: The Court’s Order/injunction and the Bar’s repeal of the application of the Bar rule in its guidelines for advertising past results is certainly a victory for the lawyer/plaintiff in this case and may leave the door open to other challenges to The Florida Bar’s advertising rules.

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]
www.jac-law.com

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