Florida Bar Website Advertising Rules: A Detailed Analysis of the Rules & Our Notes

By Peter Boyd on February 6, 2013 in ADA and Bar Rule Compliance 

We previously wrote on a brief analysis of the Florida Bar Rule changes for Advertising.  You can view that topic here.  This is now a detailed analysis of the rules.

The Subchapter 4-7 rules can be found here.   Here are our notes about the rules.  Keep in mind this is just our commentary on the rules – not the actual rules.

4-7.11 – Application of the Rules

• (a) Type of Media
  • All forms of communication in print and electronic forum are covered by the rules.  This includes the Internet, banners, pop-ups, websites and social networking.
  • Deeming social networking as advertising is a huge mistake in my opinion and shows a lack of understanding of the medium.  Yes, some social networking can be viewed as advertising, but much of it is akin to speaking to someone at a party.  Regulating how someone speaks on social networking is in my belief, a First Amendment issue.
  • More importantly, the rules do not mention search results, so not sure how they are to be interpreted long-term as search results can showcase a wealth of data (reviews, ratings, maps, text from the website, photos, and more information will be displayed in the future).
• (b) Lawyers
  • The rules apply to all lawyers who advertise that they provide legal services in Florida.
  • This is also huge as now every multi-jurisdictional law firm is bound by Florida’s rules if they have attorneys who are licensed to practice in this state.  According to the comments of the rules, only portions of a website that relate to services offered in Florida would need to apply the Florida rules.  Time to update your websites and marketing materials.
  • Firms with national practices who set up business in Florida, but do not practice here, must state “Not a Member of the Florida Bar” or “Admitted in _____ jurisdiction only.”
• (c) Referral Sources
  • All referral sources are bound by the rules.

4-7.12 Required Content

• (a) Name and Office Location
  • All advertisements must include a name of one lawyer, the law firm, a lawyer referral services, or some lawyer responsible for the ad.
  • City or Town or office of the lawyer who will perform the services.
  • I HAVE ZERO IDEA HOW ANY LAWYER CAN DO THIS IF SOCIAL NETWORKING IS CONSIDERED AN ADVERTISMENT.  If taken literally, then every Tweet or Facebook post would need to have that info.  Hopefully, the Bar recognizes this and only wants your Facebook account and Twitter account settings to mention your law firm’s website and you can then find info about your office on that website.  However, we called the Florida Bar.     Per Florida Bar – Every Tweet and Facebook post must include the name of the lawyer, law firm and office address!  Yikes!
• (b) Referrals
  • Pretty simple.  If you are going to refer the matter, put that in your ad.
• (c) Languages
  • If your ad is in multiple languages, then you are going to need to put all info in multiple languages.
• (d) Legibility
  • Make sure people can read it.  That is pretty straightforward.

4-7.13 Deceptive and Inherently Misleading Advertisements

• (a) Deceptive and Inherently Misleading Advertisements
  • Don’t make a material misstatement.  Don’t lie.  Don’t cheat. If you do, you pass Go and go directly to jail.
  • Don’t omit information that is needed.
  • Don’t imply the existence of a material nonexistent fact.
• (b) Examples of things to Avoid include all this, but not limited to…
  • Prediction of Success.  Don’t say “I will save your home.”  You also can’t say “I will get you out of jail and beat the other attorney” either, especially if you can’t.
  • Aspirational Words are still allowed.  Goal, Strive, Dedicated, Mission, Philosophy are fine.  So “my goal is to achieve the best possible result” is all cool.  It is really all about the modifier.  Just make sure you put “my goal” and you should be fine.
  • Guaranty of Success
  • Past Results….unless objectively verifiable.  So make sure you have all your results well documented.
  • For big wins, make sure you are very clear on what you did.  Successful could mean a lot, so specifically state what you did (lesser charge, settlement, verdict, etc).
  • Also, make sure you have your past clients consent before stating anything about their case.
  • Comparisons of a Lawyers Skill.   Don’t say you are the best (even if you are).  https://www.youtube.com/watch?v=oomCIXGzsR0
  • Characterization of a lawyers experience, reputation or record…unless objectively verifiable.  I am not sure how this applies to a standard law firm tagline of “Experience.  Reputable.  Hard Working.”  So we called the Florida Bar.  Florida Bar says “Experienced” and “Hard Working” are fine.  “Reputable” cannot be used since it is characterizing the quality of the representation.  Basically, make sure you state how many years you actually practiced (and in your area of expertise).  Just back up your statement: “We are the largest firm in the city” is totally fine.
  • Areas that you do not practice.
  • If you have a voice actor or image, make sure it says “Not an employee or member of the law firm.”  Time to update your websites if you have generic smiling people!
  • Dramatization of events unless you put “DRAMATIZATION.  NOT AN ACTUAL EVENT.”  I assume that has to be in all caps.  Ugh.
  • If you hire an actor, say “ACTOR.  NOT ACTUAL MEMBER OF THE FIRM.”  I wonder if we can put in ACTING! BRILLIANT! THANK YOU! and link over to Saturday Night Live. http://vimeo.com/15476780
  • Don’t state you will break the rules. That really should be the first rule and second rule of Fight…errr Florida Bar.
  • Testimonials!  Although written in a really convoluted double-negative way, you can have testimonials. Just make sure:
    • Testimonials by clients on these matters, as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible.
    • Person is qualified to make the testimonial.
    • Based on actual experience of the person.
    • That it is representative of your clients in general.
    • That you did not write it.  Come on really.  Do lawyers really write their own testimonials?  Oh wait.  Yeah, unfortunately they do on Google Reviews and other websites.  #Fail.
    • You do not pay for the review or give them something special.
    • Include a disclaimer that “Prospective client may not obtain the same or similar results.”  This is a biggie and most firms will miss that.  Update your website!
  • Don’t state that the Florida Bar has approved the ad.
  • Make sure you give everyone their appropriate title.
  • Don’t use authority figures in your ad, or an actor portraying one of them.  No judges, law enforcement offices in your ads.
  • Whew!

4-7.14 Potentially Misleading Advertisements

• Potentially Misleading Advertisements – Don’t Do Any of This
  • Ads or statements on your website that can be misinterpreted.
  • Mislead a client.
  • Reference a membership in an organization that is really fake.  Basically, don’t badge up your website with poor legal professional organizations.  Most of the big ones are probably fine (SuperLawyers, Chambers, Best Lawyers, Martindale).  Just be careful.
  • State you are board certified and you are not.  Check the rules on that, they are rather long, especially if you are certified out of state.
  • You must honor your fees advertised for 90 days.

4-7.15 Unduly Manipulative or Intrusive Advertisements

• Don’t appeal to client’s emotions through image, sound, video or dramatization.  Ummm…isn’t that the core basis of good advertising?  It appeals to client’s emotions?
  • You can use illustrations and get this….scales of justice!  Well that certainly makes design easy now.  Scales of justice for everyone.
  • You can use a photo of the lawyer.
  • You can use a map.
  • You can use a photo of the actual medication that has a bad side effect.
  • You can use a photo of an x-ray of a lung damaged by asbestos.
  • You can show people on crutches, in jail, or a particular practice area (ugh, so boring).
  • You can show a car accident, construction site, and a stack of bills in a bankruptcy matter.
  • Don’t show graphic injuries!
  • Don’t show a crying child being taken from his mother (why you want to do that anyways?)
• Don’t use an authority figure in an ad to endorse (i.e. a judge or a police officer).
• Don’t use a celebrity, unless that celebrity regularly records advertisements.  Sorry, you cannot use William Shatner, although that would be awesome.
• Don’t pay someone to employ you.

4-7.15 Presumptively Valid Content

• Lawyers and Law Firms
  • In unsolicited statements, go ahead and state:
    • Your office location
    • Parking arrangements
    • Telephone Number
    • Website address
    • Email Address
    • Hours
    • Date of admissions
    • Licenses
    • Military service
    • Languages
    • Practice areas
    • Prepaid plans or legal plans
    • Credit card acceptance
    • Fee schedules
    • Salutary language
    • Punctuation (that is nice!)
    • Scales of Justice
    • Florida Bar Logo
    • Gavel
    • Lady Justice
    • Statue of Liberty
    • American Flag
    • Eagle
    • Courthouse
    • Law Books
    • Diplomas
    • Photographs of the Firm
  • Lawyer referral service may advertise its name, location, telephone number, referral fee, its hours, and geographic areas.

4-7.17 Payment for Advertising and Promotion

• Don’t pay for another firm’s ads.  If they do pay, make sure you list all the info of both firms.
• Don’t pay for recommendations, except for usual charges for lawyer referral services or directories.
• Don’t let non-lawyers pay for your ads.

4-7.18 Direct Contact with Prospective Clients

• Solicitation
  • Do not call, fax, or email people you do not have a relationship with.
•  Written Communication – Do not communicate with people…
  • who have been in an accident within the first 30 days;
  • If the person is already represented (no poaching business);
  • If the person told you to stop emailing or writing them;
  • If you are coercing, intimidating or doing anything else evil;
  • If you plan to violate the rules;
  • If the person is not in the right mind;
  • And a few other limited clauses
  • If you do send them a note that is not prohibited by the above, then you must!
    • Mark Advertisement
    • Detail out your information
    • If a contract is mailed, put SAMPLE or DO NOT SIGN
    • If you have already retained a lawyer for this matter, please disregard this letter. Must be the first sentence.

4-7.19 Evaluation of Advertisements

• Filing Requirements
  • Provide a copy 20 days prior to dissemination
• Evaluation
  • Bar will make a ruling within 15 days.
• Preliminary Opinions
  • The bar will give you a preliminary opinion, if you want.
• Opinions on Exempt Advertisements
  • Don’t file your entire website.  You can file for specific things, if you want.
• Notice of Compliance and Disciplinary Action
  • Don’t File Late.
  • Don’t send out a non-compliant ad.
  • Don’t misrepresent.
  • If you receive a notice for a website, correct within 15 days.
• Maintain Copies
  • You must maintain a copy for 3 years

4-7.20 Exemptions from the Filing and Review Requirement

The following are exempt:

• If the ad has no illustrations or info in rule 4-7.16
• Brief announcements that are PSAs in nature

4-7.21 Firm Names and Letterhead

• Don’t use a firm name that violates any rule.
• Don’t use a deceptive trade name.
• Don’t advertise under a DBA, unless you are doing business as that name.
• Indicate jurisdictional limitations if advertising multiple offices out of state.
• Don’t use a public official in a firm name.
• Don’t steal someone else’s business name.

4-7.22 Lawyer Referrals Services

There is a long list of violations for lawyer referrals services. Make sure you do not break any of them.  Since this does not really apply to websites, we will not cover them here.

4-7.23 Lawyer Directory

You can advertise in a legal directory as long as the directory:

• Does not communicate with the public directly
• Does not share fees
• Lists only lawyers
• Responds to the Bar inquiries
• Does not imply they are endorsed by the Florida Bar
• Uses a real name
• States that it is legal directory or lawyer directory

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