Florida Personal Injury Law Firm Sues The Florida Bar over Attorney Advertising Rules

New Florida attorney advertising guidelines that took effect on May 1, 2013 violate the First Amendment and are unconstitutionally vague, according to allegations made in a federal lawsuit by the personal injury law firm of Searcy Denney Scarola Barnhart & Shipley, PA, based in West Palm Beach.

Florida maintains some of the strictest advertising guidelines in the country, and also requires that most marketing communications be filed with The Florida Bar (at $150 per submission) for approval prior to use. Websites and press releases must comply with the rules, but are not subject to the filing requirements.

The new Florida rules apply to legal marketing communications across all media, including newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, Internet banners, pop-ups, websites, social networking, and video sharing sites.

The attorney advertising rules apply to all Florida Bar members, as well as out-of-state lawyers who advertise that they provide legal services in Florida. (Out-of-state attorneys can only advertise services in Florida that are governed by federal law, like immigration, patent law, tax law, etc.)

The Searcy case questions many aspects of the new rules, including the following requirements:

• Statements regarding quality and past results must be “objectively verifiable”
• The definition of “pertinent information” that must be included in an ad
• Restrictions on the use of terms relating to an “expert” unless an attorney is board certified
• LinkedIn practices that are beyond the control of a law firm

A lawsuit over the new rules was inevitable, of course. It is easy to understand why a personal injury firm is taking the lead, given their need for aggressive marketing campaigns. The five named partners who brought the suit are all Board Certified in civil litigation by The Florida Bar.

The firm went through normal channels in requesting clarification of the rules through several rounds of correspondence with the Bar’s Ethics and Advertising Department, and received two opinion letters (dated May 7 and 17, 2013). The guidance received was not satisfactory to the firm, however, which then filed an appeal with the Standing Committee on Advertising prior to bring suit.

There are many interesting angles to this case, and we will address several of them in subsequent posts.

The case reference is Searcy et al. v. The Florida Bar et al., 4:13-cv-00664-RH-CAS, filed in the U.S. District Court for the Northern District of Florida on December 11, 2013.

Click on the link for The Florida Bar Attorney Advertising Rules. The entire Handbook weighs in at 120 pages (and is curiously not available as of the time of this writing).