Bar Compliance Solutions for Florida Attorneys
Florida Bar Rules for Attorney Advertising
The first step in designing a website for a Florida lawyer is understanding the patchwork of Florida Bar Rules regulating advertising, websites and social media. The rules in Florida are some of the most restrictive in the country. As the rules are continually amended and interpreted, Florida lawyers must understand and adjust to each change.
Read a recent news article from June 21, 2011 discussing the most recent proposed version.
Florida Bar Rules on Websites, Internet Marketing, and Advertising: Redrafted Rules Headed to Supreme Court - The Board of Governors has adopted a complete rewrite of the Florida Bar Rules regarding websites, internet marketing and advertising. Those proposed rules were submitted to the Florida Supreme Court. The rewritten rules take into consideration rulings by the United State Supreme Court on the First Amendment rights protecting attorney advertising.
The proposed rules are also much easier to understand and implement. Past case results and testimonials are now generally allowed as long as they are not misleading. The proposed rules even permit dramatizations as long as a disclaimer is added that says "Dramatization - not an actual event."
The proposed rules also clarify which types of attorney advertising must be submitted to the bar for pre-approval approval. As anticipated, the proposed rules carve out an important exception to pre-approval for websites.
Perhaps the biggest surprise involves a "one-strike" provision that prevents a lawyer from being prosecuted if a section of the attorney's website is found in violation of the rules until after the lawyer has been notified and given an opportunity to fix the non-compliant information. Although the "one-strike" provision would not apply to false or misleading statements. The proposed rules still require attorneys to include an address where they actually practice in all forms of advertising.
Regardless of which new Florida Bar rules are ultimately adopted, attorneys should carefully consider the letter and the spirit of the various versions of the rules. Taking an ethical and conservative approach often leads to the best results. When in doubt, do not say anything online that you would not feel comfortable saying in person. We help attorneys take control of their internet marketing efforts. Understanding the Florida Bar rules is an important first step.
Bar Rules Information Center
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Recent Update on Florida Bar Rules for Internet and Website Marketing
First Amendment Forces Florida Bar to Consider Amendment to Rule 4-7.6 to Allow "Information Upon Request Zone" After One-Click Disclaimer
The Florida Bar filed an emergency motion to delay the enforcement of the new Rule 4-7.6 until 90 days after the Florida Supreme Court rules on the proposed amendments which allows the attorney to set up an "information upon request" zone within the website. The Florida Supreme Court issued an order on June 10, 2010, granting the emergency stay, which means the July 1, 2010 deadline has been continued indefinitely. Read the Florida Supreme Court's Order.
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History of Florida Bar Rules for Website Advertising
Florida was the first state to explicitly address the issue of attorney internet websites. On January 1, 1996, the Florida Bar issued the following advisory opinion:
"Information that a lawyer makes available to the public about the lawyer or the lawyer's services via the Internet, or similar computer-based technology, is considered a form of lawyer advertising... Such `computer advertisements,' including law firm web sites or home pages, are subject to the Rules of Professional Conduct governing advertisements disseminated in the electronic media."
Florida has continued its efforts to regulate new technologies often leading the way for other states. In the process, the Florida Bar has created a patchwork of confusing rules that may ultimately prove to be overly restrictive. In the meantime, attorneys throughout the state of Florida must adjust their websites as each new rule is announced and interpreted.
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New Florida Bar Rules for Internet Marketing and Advertising
Effective January 1, 2010, the Florida Supreme Court amended the state's bar rules to require any website discussing a lawyer's services and is "controlled or sponsored" by a lawyer is subject to the substantive advertising regulations that control other forms of media (except the filing requirement).
Read the full opinion here - In Re: Amendments to Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, 34 Fla. L. Weekly S627 (Fla. Nov. 19, 2009), Case No. SC08-1181, in which the Florida Supreme Court held websites are governed by the general advertising requirements in Rule 4-7.2.
The Florida Supreme Court noted that existing rules for advertisements in general already provide the following:
- A lawyer shall not make statements describing or characterizing the quality of the lawyer's services in advertisements (see Rule 4-7.2(c)(2));
- A lawyer shall not make advertising communications that contain any reference to past successes or results obtained (see Rule 4-7.2(c)(1)(F)); and
- A lawyer is prohibited from using testimonials in any advertisement (see Rule 4-7.2(c)(1)(J)).
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Florida Bar Rules on Forbidden Content on an Attorney's Website
This ruling means lawyers can no longer have websites that contain the following information, unless the information is specifically requested by the client and accessed only after viewing a disclaimer:
- Any reference to a past case results;
- Any reference to a testimonial from a prior client;
- Any self-laudatory statements that compare the lawyer's services with those of other lawyers.
The ruling also requires that websites must contain the following:
- The name of a lawyer responsible for the site; and
- The geographic location of the lawyer's principal office (although that geographical description need not appear on the homepage).
Recognizing that most websites controlled or sponsored by Florida lawyers are out of compliance, the Florida Bar announced a six month moratorium on the new advertising rules related to computer accessed communications.
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Using Disclaimers to Create "Information Upon Request" Zones on Florida Attorney Websites
Rule 4-7.8 applies to advertisements. These rules do not apply to all communications an attorney has with a potential client. For instance, if the potential client calls the attorney to ask for more information, the attorney can generally discuss prior case results with the potential client or send written information about prior case results, testimonials, or make laudatory statements.
An attorney may then question, "can I set up a section of my website to be an 'information upon request' zone in which the information could be assessed only after the viewer took some affirmative step to request the additional information?" After the new rules took effect, the Florida Bar Committee on Advertising set up guidelines to a framework in which an attorney could set up an "information upon request" section of their website.
The committee offered an opinion that the "information upon request" section of the website had to be hidden from the viewer until the viewer was shown a disclaimer and made an affirmative acknowledgment that they wished to receive such additional information. Download the guidelines issued by the Florida Bar for helping Florida attorneys find ways to comply with the new rules here: New Guidelines for Florida Bar Rules on Attorney Internet Websites.
April 15, 2010 Update: The Florida Bar will consider the proposed amendments to Rule 4-7.6 (Computer Accessed Communications) that would permit an attorney to set up a portion of their website as an "information upon request zone" that would not be regulated under Rule 4-7.6.
At Internet LAVA, we have found a possibly simple solution to the disclaimer requirements for hiding content regarding past case results that would make the content viewable only after the reader acknowledges a disclaimer. Only time will tell exactly what types of disclaimers are sufficient; however, this disclaimer is easy to use and allows Google or other search engines to read the content for SEO purposes.
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Example of the Information Toggle Disclaimer to Comply with Florida Bar Rules
Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to read more about the results we have obtained in the past and statements regarding the quality of our work, you must read and acknowledge the information below before clicking on the "I agree" button:
- The facts and circumstances of your case may differ from the facts and circumstances of the cases we discuss here.
- Not all results are provided.
- The results discussed are not necessarily representative of the results obtained in all cases.
- Each case is different and must be evaluated and handled on its own merit.
Case Results
In this section of the website the attorney could discuss past case results.
Information Upon Request Zone
I do not agree. I would like to return to the homepage.
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The Good News: Attorney Websites are Exempt from the Filing Requirement
Although the new rules created much uncertainty regarding how lawyers throughout the state would come into compliance, one positive aspect of the new rules is that unlike other forms of advertisements, websites are generally exempt from the filing requirement set by Rule 4-7.8. This alone is reason for celebration because the filing requirements are painfully expensive and time consuming, especially for an attorney who wishes to continually update and improve their website.
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Florida Bar Rules Requirement for a Jurisdictional Disclosure on the Website
All Florida attorney internet websites must contain a jurisdictional disclosure, although it need not be located on the homepage. Of course, regardless of whether the jurisdictional disclosure is required to be on the homepage, every attorney's website should have a jurisdictional disclosure on every page of the website so as not to confuse the viewer.
For purposes of search engine optimization (SEO), every page of the website should discuss the jurisdictional areas where the attorney wants to target. Even for a multi-jurisdictional website, each page of the website should be targeted to certain geographical areas. When people look for information online about a legal topic, they typically include some type of geographical term such as the name of the region, state, county or city. The structure of your website should also take advantage of geographical terms so that you rank well for any area of the country that you want to target.
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Attorney Directories and Social Profiles
One question largely unanswered by the new Florida Rules concerns attorney directories and social profiles, which are a critical aspect of any internet marketing effort.
Public Citizen, a national, nonprofit consumer advocacy organization founded by Ralph Nader, filed suit in federal court on behalf of Florida attorney Joel B. Rothman prior to the new rule announcement. The lawsuit was filed when the Florida Bar Assocation told the attorney the client reviews on his online lawyer directory profile on AVVO violated the Florida Bar's advertising rules. Rothman had invited several of his clients to post a testimonial on his profile, and several of his clients did so at his request.
The Florida Bar's settlement of the Rothman litigation included a statement that the Florida Bar is reviewing the advertising rules for attorneys in Florida, and during the time the review is pending, the Florida Bar will consider profiles on directory sites as "communications at a prospective client's request." Therefore, the settlement determined during the time the review was pending, the Florida Bar Rules for advertising would not apply to profiles such as AVVO.
Paragraph four of the Rothman settlement reads as follows:
During the period of time that the Bar is undertaking a review of its advertising rules, it will consider a lawyer's online profile to be a communication as a prospective client's request under Rule 4-7.1(f) if it appears on a website that allows creation of public or private profiles as a part of a legal or business directory, or ratings site, and if the lawyer's profile may be reached by searching for or selecting the lawyer's name under circumstances where it is reasonably clear that the user is accessing information about the lawyer. This stipulation is not intended to cover information that would otherwise be prohibited by the rules if that information is automatically displayed within the results of a general search inquiry not designed to produce information about the particular advertising lawyer.
The settlement was short lived. Two days later, the Florida Supreme Court issued a ruling that changed the Florida Bar Rules for attorney websites, which included the definition of website to include not just websites the attorney created, but all websites "controlled or sponsored" by the attorney within the requirements of advertising rules.
Now, one may wonder whether websites "controlled and sponsored" by the attorney include directories such as AVVO. In many of these directories, the listing itself is not created by the attorney. Instead the attorney can "claim" the listing and add content. Other aspects of the listing are not controlled by the attorney, such as endorsements by other attorneys or client reviews, which often talk about a particular result the attorney obtained for the client.
The comment section of the new rule specifically provides that, "[t]his rule is not triggered merely because someone other than the lawyer gratuitously links to, or comments on, a lawyer's Internet website." Since the testimonials on AVVO are not controlled by the attorney, and since anyone (including a past client or another lawyer) can make a positive or negative comment on the attorney's profile, such a listing would appear to be allowed as another person's "gratuitous comment" even through it may technically contain a "testimonial" or "laudatory" statement about the attorney.
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New Florida Bar Rule 4-7.6 for Computer-Accessed Communications
(a) Definition. For purposes of this subchapter, "computer-accessed communications" are defined as information regarding a lawyer's or law firm's services that is read, viewed or heard directly through the use of a computer. Computer-accessed communications include, but are not limited to, Internet presences such as websites, unsolicited electronic mail communications, and information concerning a lawyer's or law firm's services that appears on Internet search engine screens and elsewhere.
(b) Internet Presence. All websites accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer's or law firm's services:
- shall disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law;
- shall disclose 1 or more bona fide office locations of the lawyer or law firm, in accordance with subdivision (a)(2) of rule 4-7.2; and
- are subject to the requirements of rule 4-7.2.
(c) Electronic Mail Communications. A lawyer shall not send, or knowingly permit to be sent, on the lawyer's behalf or on behalf of the lawyer's firm or partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, an unsolicited electronic mail communication directly or indirectly to a prospective client for the purpose of obtaining professional employment unless:
- the requirements of rule 4-7.2 and subdivisions (b)(1), (b)(2)(A), (b)(2)(D), (b)(2)(E), (b)(2)(F), (b)(2)(G), (b)(2)(H), and (b)(2)(I) of rule 4-7.4 are met;
- the communication discloses 1 or more bona fide office locations of the lawyer or lawyers who will actually perform the services advertised, in accordance with subdivision (a)(2) of rule 4-7.2; and
- the subject line of the communication begins with "LEGAL ADVERTISEMENT."
(d) Advertisements. All unsolicited computer-accessed communications concerning a lawyer's or law firm's services not addressed by other provisions of this rule are subject to the requirements of rule 4-7.2.
Comment
Advances in telecommunications and computer technology allow lawyers to communicate with other lawyers, clients, prospective clients, and others in increasingly quicker and more efficient ways. Regardless of the particular technology used, however, a lawyer's communications with prospective clients for the purpose of obtaining professional employment must meet standards designed to protect the public from false, deceptive, misleading, or confusing messages about lawyers or the legal system and to encourage the free flow of useful legal-related information to the public.
Unsolicited electronic mail messages from lawyers to prospective clients are functionally comparable to direct mail communications and thus are governed by similar rules. Additionally, communications advertising or promoting a lawyer's services that are posted on search engine screens or elsewhere by the lawyer, or at the lawyer's behest, with the hope that they will be seen by prospective clients are simply a form of lawyer advertising and are treated as such by the rules.
Examples of computer-accessed communications other than websites and electronic mail include pop-up advertisements and banner advertisements. As indicated by the rule, such advertisements must comply with rule 4-7.2.
This rule is not triggered merely because someone other than the lawyer gratuitously links to, or comments on, a lawyer's Internet website.
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Florida Attorney Website Bar Rule Information Center
Rules Regulating the Florida Bar and Requirements for Lawyers - This link is to an easy-to-use index of all rules regulating the Florida Bar. For more information on Florida's bar rules, contact:
The Florida Bar (Yahoo Map)
651 East Jefferson Street
Tallahassee, FL 32399-2300
Phone: (850) 561-5600
Florida Bar Rules Regulating Lawyer Advertising - This article explains the changes made by the Supreme Court of Florida effective December 17, 1999, which amended the regulations governing attorney advertising in Florida. The following list is a summary of the changes.
- Prior to the 1999 Florida Bar Rule change, all "dramatizations" were forbidden.
- The 1999 version eliminated any reference to dramatizations, and instead, required verbal or visual portrayals, or depictions or descriptions of events, things or persons to be "objectively relevant" to the process of selecting a lawyer and could not be manipulative, misleading or deceptive." See Rule 4-7.2(b)(4).
- Rule 4.7.2(c)(1) required that non-television advertisements use only still drawings or pictures that are "directly related" to a potential client's need for legal services in a particular type of case.
- The 1999 version of Florida Bar Rule 4-7.6 found that websites are considered to be information provided upon request of the person viewing the page.
- The face of the rule remained unclear if the limitations on websites applied to all regulations mentioned in Rule 4-7.2, such as limited illustrations.
Update Your Florida Bar Website Profile to Be Included In Extended Searches - The Florida Bar recently added more fields that can be added to your profile. Information now permitted is that which is critical to showing up on the website's "Find a Lawyer" search. You can add information about your location, the courts where you are admitted to practice, where you graduated from law school, areas of practice, board certification, languages and more. Floria lawyers are suggested to fill out every possible field on their profile.
Florida Bar Ethics Rules - This link is to The Florida Bar's rules governing ethics and state opinions issued regarding ethical concerns.
Internet LAVA, LLC | Florida Attorney Website and Advertising Bar Rules
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