Fla. SC adopts new lawyer advertising rules

TALLAHASSEE, Fla. (Legal Newsline) -- The Florida Supreme Court has adopted new rules governing lawyer advertising, according to an opinion released last week.

The Florida Bar petitioned the state's high court to consider proposed amendments to Subchapter 4-7 of the Rules Regulating the Florida Bar.

In its petition, the Bar proposed comprehensively amending existing Subchapter 4-7, which governs lawyer advertising, by striking all current rules and adopting new ones.

The proposed rules are the result of an extensive study by the Bar, which the Court requested in In re: Amendments to the Rules Regulating the Florida Bar -- Advertising.

The Court directed the Bar to "undertake an additional and contemporary study of lawyer advertising, which [would] include public evaluation and comments about lawyer advertising."

The Bar, in studying and developing the proposals, said it considered rulings by the U.S. Supreme Court regarding lawyer advertising and free speech, other federal court rulings, the state Supreme Court's rulings on advertising, input from attorneys and others, a Bar-sponsored survey on public attitudes about lawyer advertising, and suggestions from members of the public who serve on the Bar's Citizens Forum.

After analyzing the information, the Bar concluded that the existing lawyer advertising rules should be entirely restructured, focusing primarily on preventing the dissemination of "misleading and unduly manipulative" information.

The Bar said its proposals are designed to make the advertising rules more cohesive, easier for lawyers who advertise to understand, and less cumbersome for it to apply and enforce.

The proposals were approved by Bar's Board of Governors. Formal notice of the proposed amendments was published in The Florida Bar News. Several changes were made to the proposals in response to the comments received by the Bar.

The Bar published a notice of filing the proposals with the Court and filed the proposals on July 5, 2011. Thereafter, the Bar filed a motion to amend the pending proposals, which the Court granted.

The amended proposals were published for comment in the April 1, 2012 issue of the Bar News.

Comments were then filed with the Court, which the Court said it also considered before making its decision.

In its Jan. 31 opinion, the Court agreed to adopt the new rules as proposed, but with two exceptions: it disapproved of the suggested numbering scheme and modified proposed new rule 4-7.13(b)(10) regarding the use of a judicial, executive or legislative branch title by a current, former or retired judicial, executive or legislative branch official who is currently engaged in the practice of law.

In its ruling, the Court also addressed a concern expressed by some commenters regarding the proposed requirement in new rules 4-7.13 and 4-7.14 that certain statements made in attorney advertisements must be "objectively verifiable."

The commenters asserted the requirement is unclear.

The Court disagreed.

"If the attorney can show, by objective facts, that the statement is true, then he has presented an objectively verifiable statement in the advertisement," the majority wrote. "On the other hand, making a subjective statement such as 'the best trial lawyer in Florida' is a misleading statement that fails to meet the requirement because it is neither objective nor verifiable.

"The advertising statement must be supported by verifiable facts."

The amendments will become effective May 1.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.