Florida's Over-Regulation of Attorney Speech

Editor's Note: In the summer of 2009, a group of Florida consumers, outraged over rampant false and deceptive online advertising by attorneys, filed suit to bring an end to these abuses. Responding quickly, the Florida Supreme Court imposed tough new rules on attorneys to curb these misleading forms of advertising ' or at least that's how it would have played out in any sane industry responding to proven consumer deception. Except that in Florida there wasn't any finding of consumer deception. There weren't even any consumer complaints. There wasn't any “problem” to be solved. But the Florida Supreme Court solved it anyway, enacting new rules governing attorney Web sites that are marked by two notable features: A staggering level of clumsiness and an utter disregard for the First Amendment.

Regulation by Judicial Fiat

It started with what probably sounded like a good idea at the time: a 2008 effort by the Florida Bar to amend the state's baroquely detailed attorney advertising rules to account for the ways in which attorneys use Web sites. The Bar ' an aggressive regulator of attorney advertising ' proposed rules that specified that material contained in the inside pages of an attorney or law firm's Web site would be considered “information provided at the request of a client,” and hence not subject to most of the Bar's advertising rules. Sure, Web site information would have to be truthful and non-misleading, but under the Bar's proposed rules, it could include testimonials, discussions of past results and other information prohibited or otherwise sharply limited in advertising messages.

The Florida Supreme Court would have none of it. It flatly rejected the Bar's proposed rules, and came up with its own set of rules. Under the court's new rules, Web sites get no special dispensation. To the extent a site owner wants to talk about representative matters, it must do so on special pages, accessible only by users who affirmatively accept disclaimers before being granted access.

This requirement offers a profoundly unsatisfactory experience to consumers looking for legal information. And what of those consumers? Surely there must be some real, pernicious consumer harm out there, emanating from all of this un-disclaimed attorney Web site content, to justify the tremendous expense in time, money and attention necessary to implement these rules?

If there is, the Florida Supreme Court hasn't bothered to point it out. Satisfied with its own knowledge of what's right and wrong, deceptive and non-deceptive, it passed these wheezingly overbroad rules without even mentioning whether consumers are actually being harmed by the current state of attorney Web sites in Florida, or whether the Court's rules are the best way to meet consumer needs.

Lawyers Have Rights, Too

In response, on Aug. 14, 2010, eight of Florida's largest law firms petitioned the Florida Supreme Court to review its decision, pointing out both the enormous cost to lawyers and law firms and the lack of any documented rationale for imposing the rules. That lack of a coherent rationale for an oppressive new set of rules is important, and not just because it drives legal costs higher.

Advertising is protected by the First Amendment, and efforts to regulate advertising must meet a specific set of tests laid out 30 years ago by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Under the Central Hudson test, the government has the burden of showing that its regulation of “commercial speech” addresses an important state interest, is reasonably calculated to address a documented harm and regulates in the minimal fashion necessary to address the harm.

The commercial speech doctrine is surprisingly limited. It applies only to a category of speech described by the U.S. Supreme Court as “that which does no more than propose a commercial transaction” (see Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983)). All other speech ' even that which may have a business development angle to it, such as lawyer blogs, newsletters or articles written in professional magazines ' is entitled to full First Amendment protection. Much of the content of law firm Web sites is entitled to similar protection.

No Finding of Consumer Harm

But let's play along and assume the commercial speech doctrine applies, and that the Florida Supreme Court's rules for attorney Web sites will be viewed via the Central Hudson standard. What becomes evident is that the Florida Supreme Court has not remotely considered the extent to which the First Amendment restricts its ability to regulate attorney advertising. Commercial speech regulation requires that the state document the harm with some sort of empirical data ' “mere speculation or conjecture” is not sufficient; the state must show that “the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 U.S. 761, 770-771 (1993). Such regulation must be further supported by a showing that the regulation directly addresses the harm, and that it does so in as narrow a fashion as possible. Here, the Florida Supreme Court has not bothered to provide empirical data showing that any regulation is necessary, much less that this particular regulation is appropriate.

And therein may lie a silver lining. The great experiment in lawyer self-regulation of advertising has been, in many states, a steadily growing bubble. Attorney regulators have larded on increasingly detailed restrictions, even as public attitudes and the law have moved in the direction of greater freedom to advertise. It may be that the Florida Supreme Court has now inflated the bubble so quickly that it is at risk of popping, bringing down much of the Sunshine State's attorney regulatory apparatus with it. At the end of the day, outside of certain, narrowly drawn types of attorney solicitation, there is nothing unique about legal services that requires special regulation.

There's no reason to believe that lawyer advertising necessitates the type of pre-clearance Florida requires, or that the state's pages of picayune regulation and restrictive stance on comparative and testimonial advertising benefits consumers or stands up to constitutional scrutiny. It's unlikely that the petition of Florida's eight largest law firms will cause the state's Supreme Court to rethink the new Web site rules ' half a year after the firms' petition was filed, the silence is deafening. But one can hope that it represents an increased willingness among Florida attorneys to pursue the sort of federal court action that one day will lead to these rules being repudiated once and for all.

Joshua King is general counsel and vice president of business development for Avvo Inc. on First Amendment and professional ethics issues in the practice of law. He may be reached at 206-734-4113 or via e-mail at [email protected].

Editor's Note: In the summer of 2009, a group of Florida consumers, outraged over rampant false and deceptive online advertising by attorneys, filed suit to bring an end to these abuses. Responding quickly, the Florida Supreme Court imposed tough new rules on attorneys to curb these misleading forms of advertising ' or at least that's how it would have played out in any sane industry responding to proven consumer deception. Except that in Florida there wasn't any finding of consumer deception. There weren't even any consumer complaints. There wasn't any “problem” to be solved. But the Florida Supreme Court solved it anyway, enacting new rules governing attorney Web sites that are marked by two notable features: A staggering level of clumsiness and an utter disregard for the First Amendment.

Regulation by Judicial Fiat

It started with what probably sounded like a good idea at the time: a 2008 effort by the Florida Bar to amend the state's baroquely detailed attorney advertising rules to account for the ways in which attorneys use Web sites. The Bar ' an aggressive regulator of attorney advertising ' proposed rules that specified that material contained in the inside pages of an attorney or law firm's Web site would be considered “information provided at the request of a client,” and hence not subject to most of the Bar's advertising rules. Sure, Web site information would have to be truthful and non-misleading, but under the Bar's proposed rules, it could include testimonials, discussions of past results and other information prohibited or otherwise sharply limited in advertising messages.

The Florida Supreme Court would have none of it. It flatly rejected the Bar's proposed rules, and came up with its own set of rules. Under the court's new rules, Web sites get no special dispensation. To the extent a site owner wants to talk about representative matters, it must do so on special pages, accessible only by users who affirmatively accept disclaimers before being granted access.

This requirement offers a profoundly unsatisfactory experience to consumers looking for legal information. And what of those consumers? Surely there must be some real, pernicious consumer harm out there, emanating from all of this un-disclaimed attorney Web site content, to justify the tremendous expense in time, money and attention necessary to implement these rules?

If there is, the Florida Supreme Court hasn't bothered to point it out. Satisfied with its own knowledge of what's right and wrong, deceptive and non-deceptive, it passed these wheezingly overbroad rules without even mentioning whether consumers are actually being harmed by the current state of attorney Web sites in Florida, or whether the Court's rules are the best way to meet consumer needs.

Lawyers Have Rights, Too

In response, on Aug. 14, 2010, eight of Florida's largest law firms petitioned the Florida Supreme Court to review its decision, pointing out both the enormous cost to lawyers and law firms and the lack of any documented rationale for imposing the rules. That lack of a coherent rationale for an oppressive new set of rules is important, and not just because it drives legal costs higher.

Advertising is protected by the First Amendment, and efforts to regulate advertising must meet a specific set of tests laid out 30 years ago by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission , 447 U.S. 557 (1980). Under the Central Hudson test, the government has the burden of showing that its regulation of “commercial speech” addresses an important state interest, is reasonably calculated to address a documented harm and regulates in the minimal fashion necessary to address the harm.

The commercial speech doctrine is surprisingly limited. It applies only to a category of speech described by the U.S. Supreme Court as “that which does no more than propose a commercial transaction” ( see Bolger v. Youngs Drug Products Corp. , 463 U.S. 60, 66 (1983)). All other speech ' even that which may have a business development angle to it, such as lawyer blogs, newsletters or articles written in professional magazines ' is entitled to full First Amendment protection. Much of the content of law firm Web sites is entitled to similar protection.

No Finding of Consumer Harm

But let's play along and assume the commercial speech doctrine applies, and that the Florida Supreme Court's rules for attorney Web sites will be viewed via the Central Hudson standard. What becomes evident is that the Florida Supreme Court has not remotely considered the extent to which the First Amendment restricts its ability to regulate attorney advertising. Commercial speech regulation requires that the state document the harm with some sort of empirical data ' “mere speculation or conjecture” is not sufficient; the state must show that “the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane , 507 U.S. 761, 770-771 (1993). Such regulation must be further supported by a showing that the regulation directly addresses the harm, and that it does so in as narrow a fashion as possible. Here, the Florida Supreme Court has not bothered to provide empirical data showing that any regulation is necessary, much less that this particular regulation is appropriate.

And therein may lie a silver lining. The great experiment in lawyer self-regulation of advertising has been, in many states, a steadily growing bubble. Attorney regulators have larded on increasingly detailed restrictions, even as public attitudes and the law have moved in the direction of greater freedom to advertise. It may be that the Florida Supreme Court has now inflated the bubble so quickly that it is at risk of popping, bringing down much of the Sunshine State's attorney regulatory apparatus with it. At the end of the day, outside of certain, narrowly drawn types of attorney solicitation, there is nothing unique about legal services that requires special regulation.

There's no reason to believe that lawyer advertising necessitates the type of pre-clearance Florida requires, or that the state's pages of picayune regulation and restrictive stance on comparative and testimonial advertising benefits consumers or stands up to constitutional scrutiny. It's unlikely that the petition of Florida's eight largest law firms will cause the state's Supreme Court to rethink the new Web site rules ' half a year after the firms' petition was filed, the silence is deafening. But one can hope that it represents an increased willingness among Florida attorneys to pursue the sort of federal court action that one day will lead to these rules being repudiated once and for all.

Joshua King is general counsel and vice president of business development for Avvo Inc. on First Amendment and professional ethics issues in the practice of law. He may be reached at 206-734-4113 or via e-mail at [email protected].