first_imgLawyer advertising rule changes draw few comments Lawyer advertising rule changes draw few comments Gary Blankenship Senior Editor After nearly two years of study by the Advertising Task Force, a detailed report to the Board of Governors, and spirited debate both by the task force and by board members, the Supreme Court asked Florida lawyers for their comments on proposed revisions to the Bar’s advertising rules.Those proposed changes include requiring Bar approval of all radio and TV ads before they are aired.When the January 31 comment deadline passed, the court received only three responses — and two were from members of the task force.Tampa attorney and former task force member Bill Wagner submitted extensive comments covering several issues. Tim Chinaris, a former Bar ethics counsel who also once chaired the Bar Professional Ethics Committee, addressed the ad screening issue and several other matters. Tampa attorney and former task force member W.F. “Casey” Ebsary, Jr., addressed only rules on lawyers’ Web sites and content.The Board of Governors retained existing rules on lawyers’ Web sites while a special committee continues to study that highly technical issue. Those rules provide that Web sites are subject to general advertising regulations, except for the prohibition against characterizing the quality of legal services provided by the lawyer or law firm and the prohibition against advertising past results. Ebsary says that goes too far.“In 2006, in order to constitutionally further restrict free speech, there must be a substantial interest in addressing a likely harm,” Ebsary wrote in his comments to the court. “In the amendment process before this Court, there is no record of harm. There is no record of a complaint by a consumer or potential consumer of legal services. Consequently, there is no substantial interest, and thus no legal basis for restricting protected commercial speech.”Chinaris also mentioned Web sites, but in connection with proposed Rule 4-7.1(b), which covers non-Bar members whose ads appear in Florida and requires that those ads conform to Bar rules. Chinaris said that rule should not be adopted because it did not specify that the use of a Web site by itself would fall under the rule.On the prior screening requirement for TV and radio ads, Chinaris noted the Bar cited a high rate of rule violations for submitted electronic ads. However, he said, the rate was nearly identical for Yellow Pages and other print ads, and significantly higher for direct mail ads, but the Bar was not proposing a similar restriction on those forms of ads.He suggested the court give the Bar’s recently established Statewide Grievance Committee, which handles violations of ad rules, more time before considering a rules change.On other matters, Chinaris said the court should do away with rule restrictions preventing lawyers from mentioning past results or using testimonials from clients.He urged the court, though, to support a change requiring that lawyers using direct mail solicitations state in the letter where they obtained the information that caused the lawyer to send the letter.Wagner argued the task force’s review was flawed in that it assumed that advertising regulations as conceived by the Bar more than 15 years ago are still working. The panel should have conducted a more in-depth look at how lawyers advertise today, realizing a lot of lawyer advertising now is done as “marketing.”“[S]uch regulation of advertising should be limited to accomplishing certain goals,” Wagner wrote. “Those goals, in summary, should be (1) to enhance the ability of the public to obtain useful information about the availability of legal services and the cost of such services, (2) prohibit the dissemination of false or misleading advertising, and (3) protect and enhance the public’s respect for the legal system.”In the prescreening of electronic ads, Wagner agreed more regulation is needed for what he called “spot” radio and TV ads that are mostly intended to boost a lawyer or law firm’s name recognition.Wagner wrote that he did not mean to “suggest that the only solution for the problem is a complete ban on spot television and radio advertising is needed, although that should at least be considered. Instead the undersigned suggests that in exchange for a lawyer electing to use spot advertising to gain name recognition, rather than convey a significant amount of usable information, the lawyer would be required to include a significant amount of information advancing the public’s respect for and faith in the justice system.”But he said the issue needed more study, which would only happen if the court indicated its interest in such an alternative.The comments, as well as the Bar’s filing seeking the rule amendments, can be found on the Supreme Court’s Web site. Refer to case no. SC05-2194. The Bar’s filing may also be found on the Bar’s Web site at floridabar.org, on the Advertising Task Force page. March 1, 2006 Regular Newslast_img read more