Despite that pesky First Amendment, state bars around the country often have tried to limit what lawyers can say in advertising to prospective clients. The Florida Bar has always been a leader in this area. And, now, in rules that went into effect earlier this year, the Florida Bar had decided that ordinary promotional techniques — and even speech on certain issues of general public concern — can no longer appear on law-firm websites and in popular forms of social media.
In this lawsuit filed yesterday, a Florida law firm and its partners have challenged the new rules on First Amendment and due process (vagueness) grounds. Here's an excerpt from the introductory allegations in the complaint:
For decades, the Florida Bar has stood apart from the rest of the nation in the restrictiveness of its rules governing lawyer advertising. The rules prohibit a range of common advertising of the sort that lawyers in other states use as a matter of course and that poses no risk of misleading consumers. But until recently, lawyer websites were exempt from these prohibitions. As long as they complied with the general restriction on false and misleading advertising, Florida lawyers could set up websites, publish blogs, and participate in popular social-media sites … . That has now changed. Under amendments that became effective earlier this year, websites are subject for the first time to all of the rules’ restrictions. … According to the Bar, [plaintiff law firm] 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. … Florida’s rules are so broad that they would have subjected Abraham Lincoln to discipline for stating, in an 1852 newspaper advertisement, that his firm handled business with “promptness and fidelity”—two words that are no more “objectively verifiable” than those the Bar concludes violate its ethics rules here.