Free Speech Victory: Florida Bar Prohibition on Past Results Struck Down

BY DALISI OTERO — In Rubenstein v. Florida Bar, Judge Beth Bloom of the United States District Court for the Southern District of Florida ruled last month that the Florida Bar’s ban on attorneys’ use of past results for advertising is unconstitutional under the Free Speech Clause of the First Amendment. Judge Bloom concluded the Florida Bar failed to meet its burden of showing that the ban supported the interests–protecting the public from misleading information and preserving the reputation of the legal profession–that the Florida advertising rules were designed to promote.

In early 2013, the Florida Supreme Court adopted new attorney advertising rules that permitted attorney advertisements to reference past results as long as the statements were “objectively verifiable,” according to Rule 4-7.13. The comments to Rule 4-7.13 provide examples of descriptive statements that are and are not objectively verifiable. “Our firm is the largest firm in this city that practices exclusively personal injury law,” is objectively verifiable. However, statements including phrases such as “the best,” “second to none,” or “the finest” are not objectively verifiable.

Prior to Judge Bloom’s ruling, many legal professionals criticized Florida for the often overly-restrictive measures embodied in Rules 4-7.11 thru 4-7.23 (“Information About Legal Services”) of the Rules Regulating the Florida Bar, which govern attorney advertising. Specifically, Rule 4-7.13 and the guidelines interpreting that rule have restricted and even prohibited references to past results in attorney advertising.

A few months after the 2013 rules were adopted, Rubenstein Law, P.A. submitted several television advertisements, some including references to past results, to the Florida Bar for approval. The Bar issued a notice advising Rubenstein Law that, as to its advertisements including statements about past results, Rubenstein was in compliance with the 2013 advertising rules. However, in keeping with the Florida Bar’s tendency to restrict attorney commercial speech in order to protect consumers from misleading information and protect the reputation of the legal profession, the Bar’s approval did not last for long.

In January of 2014, the Florida Bar’s Board of Governors issued “Guidelines for Advertising Past Results,” which were issued “to assist lawyers in complying with [Florida’s professional responsibility rules] when advertising past results.” These guidelines included the following statement regarding the inclusion of past results:

“Such advertising [that includes past results] will require the inclusion of more information than most types of advertising in order to comply with Rules 4-7.13(a)(2) and 4-7.14(a). Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not issue a notice of compliance for advertisements in such media that include references to past results.”

Subsequently, the Florida Bar withdrew its prior approval of several of Rubenstein Law’s television advertisements, basing its decision on the new guidelines. Robert Rubenstein and Rubenstein Law, P.A., then instituted a First Amendment suit against the Florida Bar, alleging that the prohibition on the use of past results in certain media was a violation of attorneys’ First Amendment right to free speech.

In the opinion granting Rubenstein Law’s Motion for Summary Judgment, Judge Bloom found that the Florida Bar’s rules relating to past results advertising was unconstitutional. Judge Bloom noted that although advertisements on indoor and outdoor display, television, and radio media have a “high risk” of being misleading, these types of advertisements are not “inherently or actually misleading.” Thus, the speech may be restricted only to serve a substantial governmental interest and only through means that directly advance that interest. The court applied the intermediate scrutiny standard from Central Hudson Gas & Electric Corp. v. Public Service Commission, asking whether the commercial speech restriction “(1) promotes a substantial government interest; (2) directly advances the interest asserted; and (3) is not more extensive than necessary to serve that interest.”

Under the first prong of the Central Hudson test, the Florida Bar introduced evidence that it sought to advance three government interests with the rules regarding advertising: (1) protecting the public from misleading attorney advertising; (2) promoting attorney advertising that is “positively informative to potential clients”; and (3) protecting the reputation of the legal profession. The court held that the Bar failed to establish that the overly-extensive blanket restriction on the use of past results in certain media directly advanced these governmental interests.

This ruling has stopped the Florida Bar in its tracks and slowed the steady crawl toward even greater restrictions on attorneys’ commercial free speech. Consumer protection is a valid and important government interest. However, even the Federal Trade Commission, one of the great “consumer protectors,” noted in a 2007 letter to the Florida Bar that a proposed rule in Florida at the time, which would have prohibited referencing past successes on homepages and electronic solicitations, would be likely to “deprive Florida consumers of truthful, non-misleading information,” even when applied to other forms of attorney advertising. The public now has one more reference point to use in determining which attorneys to choose.

In this case, free speech coincided with consumer protection, at least in the eyes of the Southern District of Florida. The question now is whether or not the Florida Bar will find another way to restrict the use of advertisements with past results, which it apparently now believes have a high risk of misleading the public. If the Bar’s “past results” are any indication, then it should beware of more successful First Amendment suits in its endeavors to further restrict commercial speech, whether in the name of consumer protection or not.

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