The Florida Bar liberalized its lawyer advertising rules with respect to the use of
e-mail and Web sites, while its attempt to ban the use of trade names was rejected by the
Florida Supreme Court.
The petition to change the lawyer advertising rules was filed in February 1998 with
oral arguments held the following September. The majority of changes involved
reorganization and clarification of existing rules, with the addition of electronically
accessed information such as e-mail and Web sites.
"I was pleased that the court adopted most of the changes recommended by the bar.
I was disappointed, but not surprised, at the court’s decision not to accept the
bar’s recommendation that trade names be banned," says Edith Osman of Miami, who
now is the bar’s immediate past president.
The previous policy regarding Web sites had the home page subject to the general rules,
which required them to be filed for review. The rest of the site was considered
information upon request and subject to less stringent regulation, Osman says.
The new rule requires that lawyers post specific information on their Web sites, which
remains subject to the general requirements of the lawyer advertising rules but are
considered information upon request, and, therefore, exempt from the requirement that they
be filed with the bar for review.
No previous rule existed for e-mail. The new rule treats e-mail the same way as
direct-mail communications, Osman explains.
"The bar has not surveyed its members to determine how many communicate with
prospective clients in this manner, but has received inquiries previously on how e-mail to
prospective clients is regulated," she notes.
However, the bar contracted for surveys in 1997 regarding lawyer advertising and trade
names, including focus groups of 67 men and women at least 25 years old. The focus groups,
conducted by Frank N. Magid Associates Inc., in Miami, Tampa and Jacksonville, were asked
about such trade groups as The Marra Law Group, The Ticket Center or The Center For
Professional Legal Services.
"All agree that the trade names ‘group’ and ‘center’ lead
consumers to believe that such organizations comprise more than one person. While some say
it is ‘possible’ that the print ads advertise for a sole individual, all say the
ads ‘give the impression it’s more than one person.’ Similarly, they say
the specific areas of law mentioned refer to an organization’s area of
concentration," the Magid report states.
Also, inquiries to the bar’s Standing Committee on Advertising showed that some
lawyers purposely used trade names that included the words "center" or
"group" so that the public will believe the firm had more lawyers and resources
than in reality, Osman notes. The Supreme Court indicated in its opinion that the
bar’s existing rules that prohibit the use of misleading trade names are sufficient
to address these issues instead of a complete ban on the use of trade names, she adds.
Former bar President Benjamin Hill III (1991-92), chair of the task force that proposed
the recommendations supported by surveys and bar records, believed the evidence was
sufficient to ban trade names. However, without consumer complaints stating they were
misled by trade names, the state Supreme Court was unconvinced.
Hill is among the original group of committee members who proposed other wide-ranging
changes in lawyer advertising that were approved in 1990. Since then, the bar instituted a
30-day solicitation rule that prohibits lawyers from contacting accident victims or their
families within 30 days of a tragedy. That rule came to the forefront after the ValuJet
plane crash in Florida and the deluge of lawyers soliciting victims’ families.
Since the new rules in December 1999, Hill remains steadfast in his mission to ensure
that consumers are thoroughly protected and lawyers abide by what are some of the
country’s most extensive sets of rules.
"The Florida Supreme Court has always been supportive of the bar, but I was
disappointed that it didn’t accept the rule on trade names," admits Hill.
While the court accepted the rest of the recommendations, Hill continues his vigilance
in lawyer advertising. "The court also sent us a subtle message that we have gone as
far as they will let us go on lawyer advertising, unless we can show that something else
is causing harm," Hill adds.
(Also see "Lawyer advertising in Massachusetts nixed, while solicitation rule is
liberalized," Bar Leader, May 1999, p. 7.)
