in the supreme court of florida in re: the florlda bar's ... · 7. if the advertising law firm...

IN THE SUPREME COURT OF FLORIDA

IN RE THE FLORlDA BARS PETITION TO AMEND RULES REGULATING THE FLORlDA BAR- RULE 4-76 COIvIPUTER ACCESSED COMMUNICATIONS ______________________ 1

NOTICE OF FILING EXHIBITS IN SUPPORT OF COMMENTS OF SEARCY DENNEY AND THE AMERICAN

CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA INC

SEARCY DENNEY SCAROLA BARNHART amp SHIPLEY PA

(SEARCY DENNEY) and the AMERlCAN CIVIL LIBERTIES UNION

FOUNDATION OF FLORlDA INC(ACLU) through counsel hereby file the

following exhibits in support of Comments of Searcy Denney and the American Civil Liberties Union Foundation of Florida Inc

Appendix A - Florida Bar Quick Reference Checklist-Websites

Appendix B - Federal Trade Commission letter to Florida Bar

Respectfully submitted

it 1650 Esperante 222 Lakeview Ave West Palm Beach FL 33401 Florida Bar No 229466 (561) 659-2029 (561) 655-1357 (facsimile) COUNSEL FOR SEARCY DENNEY SCAROLA BARNHART amp SHIPLEY PA

Randall C Marshall Esq Legal Director American Civil Liberties Union

Foundation of Florida Inc 4500 Biscayne Blvd Ste 340 Miami FL 33137 Florida Bar No 181765

(786) 363-2700 (786) 363-1108 (facsimile)

COUNSEL FOR THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA INC

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by

US Mail on this 25th day of June 2010 to Timothy P Chinaris Esq PO Box

210265 Montgomery Alabama 36121-0265 John F Harkness Jr Executive

Director The Florida Bar 651 East Jefferson Street Tallahassee Florida 32399shy

2300 Mary Ellen Bateman and Elizabeth Clark Tarbert The Florida Bar 651 East

Jefferson Street Tallahassee Florida 32399-2300 John G White III The Florida

Bar 651 East Jefferson Street Tallahassee Florida 32399-2300 Jesse H Diner

The Florida Bar 651 East Jefferson Street Tallahassee Florida 32399-2300

Charles Chobee Ebbets Ebbets Armstrong amp Traster 210 South Beach Street

Suite 200 Daytona Beach Florida 32114

Appendix A

I

I I I

I I

I

QUICK REFERENCE CHECI(LIST - WEBSITES

The following quick reference checklist is intended to assist advertising attorneys develop websites that comply with the Rules of Professional Conduct Websites must comply with all substantive lawyer advertising regulations set forth in Rule 4-72 effective July 12010 Although websites must comply with these requirements they are not required to be filed with The Florida Bar for review Rule 4-78(f) Rules Regulating The Florida Bar The Florida Bar Board of Governors has adopted a policy that The Florida Bar will not accept voluntary filings of the entire contents of a lawyer or law firm website although staff of the Ethics and Advertising Department will respond to specific questions involving a specific phrase or image to be included on a website To make such an inquiry please call the Ethics and Advertising Department at (800) 235-8619

A NO answer to all the questions does not guarantee that the website complies with the rules regulating lawyer advertising

If the answer to any of the following questions is YES the website fails to comply with the Rules of Professional Conduct of The Florida Bar

1 Does the website contain any misrepresentations of fact or law Rules 4 72(c)(l)(A) 4shy72(b)(2)

2 Does the advertisement contain any information that promises results Rule 4-72(c)(1)(G)

3 Does the advertisement contain any references to past results Rule 4-7 2( c)(1 )(F)

4 Does the website contain any statements that describe or characterize the quality of the lawyers services Rule 4-72(c)(2)

5 Does the website fail to disclose the city of at least one bona fide office location of the advertising attorney Rule 4-72(a)(2) Is the geographic disclosure illegible Rule 4shy72(c)(11)

6 Does the website fail to contain the name of at least one lawyer responsible for the website Rule 4-72(a)(l) Is the name illegible Rule 4-72(c)(11)

7 If the advertising law firm employs a fictitious or trade name does the fictitious or trade name fail to appear on all the firms advertising letterhead business cards office sign pleadings and other firm documents Rule 4-7 9(c)

8 Only attorneys who are board certified in a particular area of the law may claim to be certified board certified or claim a specialization or expertise and only in the area of law in which they are certified A firm cannot claim a specialization

(a) Does the advertising attorney who is not board certified claim a specialization or expertise Rule 4-7 2( c)( 6)

(b) Does the advertising attorney who is board certified claim a specialization or expertise in an area of law other than that in which he or she is board certified Rule 4-72(c)(6)

(c) Does the advertising firm claim a specialization Rule 6-34( c) and Rule 4 72(c)(6)

9 If the website quotes a fee does it fail to disclose whether the client will be responsible for any costs or expenses in addition to the advertised fee Rule 4-72( c )(7) Is the cost disclosure illegible Rule 4-7 2( c )(11) If the website appears in a language other than English does the cost disclosure fail to appear in that language Rule 4-72( c)(1 0)

10 If the website states that the attorney will not receive a fee unless an award is obtained does the website fail to disclose whether or not the client will be responsible for costs or expenses in the absence of a recovery Rule 4-7 2( c )(7) Is the cost disclosure illegible Rule 4shy72(c)(lI) If the website appears in a language other than English does the cost disclosure fail to appear in that language Rule 4-72(c)(10)

11 Does the lawyer advertise for legal employment in an area of practice in which the lawyer does not currently practice Rule 4-7 2( c)( 4)

12 Does the website contain any illustrations or photographs that are likely to deceive mislead manipulate or confuse the viewer Rule 4-72( c )(3)

13 Does the website contain a visual or verbal description depiction or portrayal of persons things or events that is deceptive misleading or manipulative Rule 4-72(c)(3)

14 Does the website contain any testimonials or endorsements Rule 4-72(b)(1 )(J)

15 Does the website fail to disclose that the case or matter will be referred to another lawyer or lawfirm Rule4-72(c)(13) Is this disclosure illegible Rule4-72(c)(11) If the website appears in a language other than English does the disclosure fail to appear in that language Rule 4-72(c)(10)

16 Does the advertisement contain the voice or image ofa celebrity Rule 4-72(c)(l5)

17 Does the advertisement include any sound that is deceptive misleading manipulative or likely to confuse the listener Rule 4-7 2( c )(16)

18 Does the website fail to disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law Rule 4-7 6(b)(1 )

FOR ADDITIONAL INFORMATION PLEASE SEE THE

GUIDELINES FOR LAWYER AND LAW FIRM WEBSITES

Appendix B

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION WASHINGTON DC 20580

Office of Pol icy Planning Bureau of Consumer Protection

Bureau of Competiti on Bureau of Economics

March 232007

Elizabeth Clark Tarbert Esq Ethics Counsel The Florida Bar 651 E Jefferson Street Tallahassee FL 32399-2300

Re The Florida Bars Proposed Changes to the Florida Rules of Professional Conduct Regarding Computer-Accessed Communications

Dear Ms Tarbert

The staff of the Federal Trade Commissions (FTC or Commission) Office of Policy Planning Bureau of Consumer Protection Bureau of Competition and Bureau of Economics is pleased to submit these comments regarding the Florida Bars Special Committee on Website Advertisings (Committee) Proposed Changes to Rule 4-76 ofthe Florida Rules of Professional Conduct regarding Computer-Accessed Communications (Proposed Rule) As a general principle it is important to protect consumers of legal services from deceptive and misleading advertising The Proposed Rule however unnecessarily restricts truthful and nonshymisleading advertising may result in higher prices paid for legal services and less consumer choice This letter briefly summarizes the Commissions interest and experience in the

This letter expresses the views of the Federal Trade Commissions Office of Policy Planning Bureau of Consumer Protection Bureau of Competition and Bureau of Economics The letter does nolnecessarily represent the views of the Federal Trade Commission or of any individual Commissioner The Commission has however voted to authorize us to submit these comments

The Proposed Rule is available at httpwwwfloridabarorgITFBTFBResolircesnsfiAttachmentsl 30A240687 33B 904C8525 726F007C 5E80$FILE4-762 Oapproved2 Oby20bog20fo r20p ublication20 1-2 6-06docOpenElement We understand that the modifications to Rule 4-76 have been approved by the Bars Board of Governors who have invited public comment We further understand that the Proposed Rule follows the Supreme Court of Floridas rejection of proposed changes to Rule 4-76 in November 2006 See In re Amendments to the Rules Regulating the Florida Bar - Advertising 2006 WL 3093] 26 2 (Fla Nov 2 2006) (The Court stated it would consider the regulation 0 f Internet com munications w hen the Bar fi les the report of the spec ial com mittee and request[edj that the Bar undertake an additional and contemporary study of lawyer advertising which shall include public evaluation and comments about lawyer advertising[))

Elizabeth Clark Tarbert Esq March 23 2007 Page 2 of7

regulation of attorney advertising and provides an analysis of the anticipated effects on consumers and competition of the Proposed Rule3

Interest of the Federal Trade Commission

The FTC enforces laws prohibiting unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce which includes primary responsibility for stopping deceptive advertising 4 Pursuant to its statutory mandate the Commission encourages competition in the licensed professions including the legal profession to the maximum extent compatible with other state and federal goals In particular the Commission seeks to identify and prevent where possible business practices and regulations that impede competition without offering countervailing benefits to consumers5 The Commission and its staff have had a longshystanding interest in the effects on consumers and competition arising from the regulation of lawyer advertising and solicitation6 The FTC believes that while false and misleading advertising by lawyers should be prohibited imposing overly broad restrictions that prevent the communication oftmthful and non-misleading information that some consumers value is likely to inhibit competition and frustrate informed consumer choice This position is supported by

Although this letter focuses on the policy implications of the Proposed Rule with respect to consumers and competition the Bar may wish also to evaluate the Rules prohibitions under First Amendment criteria See eg Bates v State Bar ofArizona 433 US 350 (1977) (striking down bar prohibitions against attorney advertising in general) Central Hudson Gas amp poundlec Corp v Public Servo Comm n of New York 447 US 557 566 (1980) (commercial speech regulations must be narrowly tailored to directly advance a substantial government interest) see also Florida Bar V Wentfor It 515 US 618 632 (1995) (commercial speech regulations must be in proportion to

the interest served and be factored against other less-burdensome alternatives)

Federal Trade Commission Act 15 USC sect 45

Specific statutory authority for the FTCs advocacy program is found in Section 6 of the FTC Act under which Congress authorized the FTC [t]o gather and compile information concerning and to investigate from time to time the organization business conduct practices and management of any person partnership or corporation engaged in or whose business affects commerce and [Ilo make public from time to time such portions of the information obtained by it hereunder as are in the public interest Id sect 46(a) (f)

See eg Letter from FTC Staff to the Rules of Professional Conduct Committee Louisiana State Bar Association (Mar 14 2007) ava ilable a I hffpwwwficgovopa200703 1Ii07225hlm Letter fro m FT C Staff to the Office of Court Administration Supreme Court of New York (Sept 142006) available al httpwwwftcgov osI200609v060020-imagepdf Letter from FTC Staff to the Professional Ethics Committee for the State Bar of Texas (M ay 26 2006) ava ilable a I httpwwwftcgovosI200605V0600 17C om mentsonaReguestforAn Elh ics Opinionlmagepdf Letter from FTC Staff to Committee on Attorney Advertising the Supreme Court of New Jersey (Mar 12006) available at httpwwwftcgovbeIV060009pdf see also eg Letter from FTC Staff to Robert G Esdale Clerk of the Alabama Supreme Court (Sept 30 2002) available at httpwwwftcgovbev020023pdf In addition the staff has provided its comments on such proposals to among other entities the Supreme Court of Mississippi (Jan 14 1994) the State Bar of Arizona (Apr 171990) the Ohio State Bar Association (Nov 3 1989) the Florida Bar Board of Governors (July 17 1989) and the State Bar of Georgia (Mar 311987) See also Submission of the Staffof the Federal Trade Commission to the American Bar Association Commission on Advertising (June 241994) (available online as attachment to Sept 30 2002 Letter to Alabama Supreme Court supra )

Elizabeth Clark Tarbert Esq March 232007 Page 3 of7

research indicating that overly broad restrictions on truthful advertising may adversely affect prices paid and services received by consumers7

Likely Effects of the Proposed Rule

Currently the rule regarding computer-accessed communications classifies all Internet websites as information provided to a prospective client at the prospective clients request8 The Proposed Rule would subject homepages websites except for homepages (websites)9 emails and other computer-accessed communications to rule 4-72 regarding attorney advertising which prohibits attorney advertisements from containing (1) unverified comparisons of the lawyers or law firms services with other lawyers serviceslo and descriptive statements describing or characterizing the quality of the lawyers services II (2) statements referring to past successes or results obtained12 and (3) testimonials 13 Although the Proposed Rule exempts we bsites from some of the restrictions in Rule 4-72 if specific disclaimers are made FTC Staff believes that it is likely to restrict unnecessarily the dissemination of truthful and non-misleading information on homepages and websites 14 The Florida Rules of Professional Conduct already prohibit false misleading or deceptive communications and prohibit attorneys from engaging in

See eg Timothy 1 Muris California Dental Association v Federal Trade Commission The Revenge of Footnote 178 Supreme Court Economic Review 265 293-304 (2000) (discussing the empirical literature on the effect of advertising restrictions in the professions) In the katter of Polygram Holdings Inc et al FTC Docket No 9298 (FTC 2003) at 38 n52 (same) Frank H Stephen amp James H Love Regulation of the Legal Professions 5860 Encycloped ia of La wand Eco nom ics 987 997 (1999) availab Ie at httpencvclotindlaw com5860bookpd f (Empirical studies demonstrate that restrictions on attorney advertising have the effect of raising fees) Submission of the Staffof the Federal Trade Commission to the American Bar Association Commission on Advertising June 24 1994 at 5-6 (available online as attachment to Sept 30 2002 Letter to Alabama Supreme Court) supra

See Rule 4-76(b)(3)

The Comment to Proposed Rule 4-76 distinguishes a homepage from other webpages (compare Rule 4shy76(b)(I) and Rule 4-76(b)(2raquo based on the degree of consumer initiation required to obtain the content provided Thus Rule 4-76(b)(2) allows attorneys to place testimonials statements of past success and descriptive statements on websites except for homepages as long as they are accompanied by specified disclosures For information on how to present online disclosures most usefully to consumers while not unnecessarily burdening attorneys and law firms the Committee may wish to consult FTC guidance concerning how to disclose clearly and conspicuously information in the on-line context See generally Federal Trade Commission Dot Com Disclosures Information about Online Advertising (May 2000) available at httpwwwftcgovbcpconlinepubsbuspubsdotcom index pdf

10 See Rule 4-72(c)(I)(I)

II See Rule 4-72(c)(2)

12 See Rule 4-72(c)(I)(F)

13 See Rule 4-72(c)(1)(J)

14 We also note that application of these restrictions to other forms of attorney advertising is also likely to deprive Florida consumers of truthful non-misleading information


any dishonest fraudulent and deceitful conduct and misrepresentations ls Because the Bar has safeguards in place to protect consumers FTC Staff recommends adopting a less restrictive alternative than those proposed which constrain truthful non-misleading statements in computershyaccessed communications

First the Proposed Rule would prohibit comparative claims that have not been objectively verified from appearing in any forms of computer-accessed communicationsl6 and prohibit descriptive statements from appearing on computer-accessed communications other than websites 17 Comparative advertising can encourage improvement and innovation in the delivery of services and benefit consumers with assistance in making rational purchase decisions 18

Requiring that comparative claims be substantiated can of course serve consumers by helping to ensure that claims are not misleading But if substantiation is demanded for representations that although not misleading concern subjective qualities that are not easy to measure and for which substantiation may not normally be expected then messages that consumers may find useful may be barred To the extent that the Proposed Rules broad restrictions might be based on a concern that unsubstantiated comparisons and descriptions could mislead consumers the concern would be better addressed by a rule requiring that advertising claims that consumers would nonnally expect to be substantiated must be substantiated 19

Second the Proposed Rules would prohibit reporting past success on homepages and electronic solicitations pursuant to Rule 4-72( c)(1 )(F)20 Many lawyers and law firms (including both Florida-based law firms and multi-jurisdictional law firms with offices in Florida) post on main homepages announcements press releases and other stories that involve client representations that consumers may find infonnative Similarly lawyers often announce their

15 See Rule 4-72(c)(I) and Rule 84(c) respectively

16 See Rule 4-72( c)( 1 )(l) as applied through Rule 4-76

17 Proposed Rule 4-76(b)(2)(C) states that websites may contain factually verifiable statements describing or characterizing the quality of the lawyers services if either alone or in the context in which they appear such statements are not otherwise misleading

18 See Letter from Federal Trade Commission to the New Jersey Supreme Courts Committee on Attorney Advertising (Nov 91987) available al1987 WL 874590

19 In addition it is not entirely clear whether literally accurate descriptions (such as advertising that an attorney is listed among Super Lawyers or Americas Best Lawyers or that a lawyer has earned a highest AV ranking awarded by Martindale-Hubbell) that may appear on a lawyers homepage website e-mail or other advertisement will now be barred either as improper comparisons or as descriptive monikers that imply an ability to obtain future results Such information may benefit consumers so long as it is neither false nor misleading

20 Proposed Rule 4-76(b)(2)(A) would allow statements of past success on websites except for homepages if that statement is accompanied by the following disclaimer Not all results are provided the results are not necessarily representative of results obtained by the lawyer and a prospective clients individual facts and

circumstances may differ from the matter in which the results are provided


achievements via e-mail and web-log (blog) reporting Such communications may be truthful and non-misleading and can help consumers in assessing the caliber or personal style of a lawyer or law fIrm

Third the Proposed Rule would prohibit attorneys from using any testimonials on their homepages and electronic solicitations21 Testimonials and information about previous representations can convey valuable information to consumers and help spur competition Accordingly the FTC Staff recommends that they be prohibited only if the endorsement testimonial or other information deceives consumers As explained in the FTCs Endorsement Guides a consumer testimonial is likely to be deceptive if the experience described is not the consumers actual experience or is not representative of what consumers generally experience22

The FTC Staff is also concerned that the Proposed Rule would require all computershyaccessed communications except for homepages and websites to be fIled with and reviewed by the Bar which is comprised of competing attorneys for compliance evaluation and approval23

Bar opinions of non-compliance with the Proposed Rule will result in the attorney being notified that dissemination of the computer-accessed solicitation may result in professional discipline In this manner the advertising rules likely compel substantial compliance because non-complying attorneys would face serious risks to their livelihoods

The FTC supports legitimate industry self regulation because when implemented properly it can benefIt consumers and competition24 However there are risks to competition when one group of competitors regulates another For example attorneys reviewing advertisements and solicitations may have the incentive and would have the ability to limit advertising by competitors to soften competition rather than to protect consumers25 This is

21 Proposed Rule 4-76(b)(2)(B) would allow testimonials on websites except for homepages if the testimonial is accompanied by the following disclaimer Not all clients have provided testimonials the results are not necessarily representative of results obtained by the lawyer and a prospective clients individual facts and circumstances may differ from the matter in which the testimonials are provided

22 See generally Federal Trade Commission Guide Concerning the Use of Endorsements and Testimonials in Advertising 16 CFR Part 255 As part of the Commissions regulatory review of its Endorsement Guides the Commission is presently seeking public comment to the Guides

23 See Rules 4-776(c) 4-77 and 4-78 This concern extends to all forms of advertising that are subject to review pre-approval and approval under Rule 4-7 The FTC Staff recommends that the Bar address the impact of this rule on consumers when it undertakes the additional and contemporary study of lawyer adveliising as mandated by the Supreme Court of Florida

24 See eg Deborah Platt Majoras Self Regulatory Organizations and the FTC Address to the Council of Better Business Bureaus (Apr 112005) (available at httpwwwftcgoYspeechesmajoras05041 IselfregorgspdO

25 Our concern about the policy and competitive constraints it imposes extends to the screening and approval requirements of all attorney adveliising as described in Rule 4-77

Elizabeth Clark Tarbert Esq March 23 2007 Page60f7

especially true given that advertisements and solicitations as defined may include those sent by out-of-state attorneys to Florida residents The FTC Staffis concerned that any potential benefits from such extensive filing disclosure and review requirements would be outweighed by the detrimental effect that such a regulatory obligation might have upon competition26 The FTC Staff encourages the Committee to revise the Rules so as to exclude such communications from this form of review

In conclusion the FTC Staff believes that while deceptive and misleading advertising by lawyers should be prohibited restrictions on advertising that are specifically tailored to prevent nothing other than deceptive claims provide the optimal level of protection for consumers Consumers benefit from robust competition among attorneys and from important price and quality information that advertising and solicitation can provide Rules that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Florida


Maureen K Ohlhausen Director

Office of Policy Planning

Lydia B Parnes Director

Bureau of Consumer Protection

Due to the risk of anticompetitive behavior a leading antitrust treatise advocates subjecting any governmental agency made of members of the profession that it regulates to direct and active governmental supervision See AREEDA amp HOVENKAMP I ANTITRUST LAW ~227a at 500 (2d ed 2000) (Without reasonable assurances that the body is far more broadly based than the very persons who are to be regulated outside supervision seems required)

26


Jeffrey Schmidt Director

Bureau of Competition

Michael A Salinger Director

Bureau of Economics

Randall C Marshall Esq Legal Director American Civil Liberties Union

Foundation of Florida Inc 4500 Biscayne Blvd Ste 340 Miami FL 33137 Florida Bar No 181765

(786) 363-2700 (786) 363-1108 (facsimile)

COUNSEL FOR THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA INC

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by

US Mail on this 25th day of June 2010 to Timothy P Chinaris Esq PO Box

210265 Montgomery Alabama 36121-0265 John F Harkness Jr Executive

Director The Florida Bar 651 East Jefferson Street Tallahassee Florida 32399shy

2300 Mary Ellen Bateman and Elizabeth Clark Tarbert The Florida Bar 651 East

Jefferson Street Tallahassee Florida 32399-2300 John G White III The Florida

Bar 651 East Jefferson Street Tallahassee Florida 32399-2300 Jesse H Diner

The Florida Bar 651 East Jefferson Street Tallahassee Florida 32399-2300

Charles Chobee Ebbets Ebbets Armstrong amp Traster 210 South Beach Street

Suite 200 Daytona Beach Florida 32114

Appendix A

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Appendix B





March 232007



Dear Ms Tarbert




Elizabeth Clark Tarbert Esq March 23 2007 of7














See Rule 4-76(b)(3)





13 See Rule 4-72(c)(1)(J)


































26





Bureau of Economics

Appendix A

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I




























Appendix B





March 232007



Dear Ms Tarbert













Elizabeth Clark Tarbert Esq March 232007 of7





See Rule 4-76(b)(3)





13 See Rule 4-72(c)(1)(J)


































26





Bureau of Economics




























Appendix B





March 232007



Dear Ms Tarbert


















See Rule 4-76(b)(3)





13 See Rule 4-72(c)(1)(J)


Elizabeth Clark Tarbert Esq March 23 2007 of7
































26





Bureau of Economics














Appendix B





March 232007



Dear Ms Tarbert


















See Rule 4-76(b)(3)





13 See Rule 4-72(c)(1)(J)


































26





Bureau of Economics





March 232007



Dear Ms Tarbert


















See Rule 4-76(b)(3)





13 See Rule 4-72(c)(1)(J)


































26





Bureau of Economics















See Rule 4-76(b)(3)





13 See Rule 4-72(c)(1)(J)


































26





Bureau of Economics

































26





Bureau of Economics





Bureau of Economics

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