Florida Bar Rules for Attorney Advertising

At Internet LAVA we understand that the first step in designing a website for a Florida lawyer requires the lawyer becoming educated about all of the patchwork of Florida Bar Rules regulating advertising, websites, and social media. As the Florida bar rules are continually amended and interpreted, the lawyer must understand and adjust to each change.

Update: First Amendment Forces Florida Bar to Consider Amendment to Rule 4-7.6 to Allow "Information Upon Request Zone" After One-Click Disclaimer

Latest Update: 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 websit. The Florida Supreme Court issued an order on June 10, 2010, granting the emergency stay which means that the July 1, 2010 deadline has been continued indefinately. Read the Florida Supreme Court's Order.

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 rules is announced and interpreted.

New Florida Bar Rules for an Attorney's Internet Website

Effective January 1, 2010, the Florida Supreme Court amended the Bar Rules to require that any website that discusses a lawyer's services and is "controlled or sponsored" by 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 found that 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 provided the following:

1. 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));
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
3. A lawyer is prohibited from using testimonials in any advertisement (see Rule 4-7.2(c)(1)(J)).

Florida Bar Rules on Forbidden Content on an Attorney's Website

As written, this ruling means that lawyers can no longer have websites that contained the following information unless that information is specifically requested by the client and accessed only after viewing a disclaimer:

1. Any reference to a past case results;
2. Any reference to a testimonial from a prior client;
3. 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:

1. The name of a lawyer responsible for the site; and
2. 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.

Using Disclaimers to Create "Information Upon Request" Zones on Florida Attorney Websites

Rule 4-7.8 applies to advertisements. Those 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 about for more information, the attorney can generally discuss those prior case results with the potential client, or send the client written information about prior case results, testimonials, or make "laudatory statements."

The question then becomes - "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 the 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 the viewer wished to receive such additional information. Click here to download the new guidelines issued by the Florida Bar for helping Florida attorneys find ways to comply with the new rules - 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 there website as an "information upon request zone" that would not fall under Rule 4-7.6.

At Internet LAVA we have found a possible simple solution to the disclaimer requirements for hiding content regarding past case results which 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 also allows Google or other search engines to read the content for SEO purposes.

Example of the Information Toggle Disclaimer to Comply with Florida Bar Rules

The Good News: Attorney Websites are Exempt from the Filing Requirement

Although the new rules created a lot of 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.

Florida Bar Rules Requirement for a Jurisdictional Disclosure on the Website

All Florida attorney internet websites must contain a jurisdictional disclosure, although that disclosure 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, every page of the website should discuss the jurisdictional areas in which 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 on line 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.

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 being announced. The law suit was filed when the Florida Bar Assocation told the attorney that 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 that 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 that 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 read 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 the websites that the attorney created, but all websites "controlled or sponsored" by the attorney within the requirement of advertising rules.

Now the question becomes whether websites "controlled and sponsored" by the attorney included 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.

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:

1. shall disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law;
2. 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
3. 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:

1. 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;
2. 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
3. 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.

For more information on how the Florida Bar Rules impact your internet marketing strategy, contact Internet LAVA. We provide cost effective website design and internet marketing strategies to busy attorneys that provide an incredible return on the investiment. While other attorneys spend too much on expensive pay per click campaigns read more about internet marketing for the particular practice areas such as personal injury, medical malpractice, family law, securities law, DUI / DWI, criminal defense or immigration law.

Florida Bar Rules Information Zone for Lawyers

Rules Regulating the Florida Bar and Requirements for Lawyers - Find an easy to use index of all rules regulating the Florida Bar. For more information contact the:

Florida Bar Rules Regulating Lawyer Advertising - Article explaining changes made by the Supreme Court of Florida effective December 17, 1999 which amended the regulations governing attorney advertising in Florida.

• Prior to the 1999 Florida Bar Rule change, all "dramatizations" were forbidden.
• The 1999 version eliminated any referent to dramatizations and instead required that verbal or visual portrayals, depictions or descriptions of events, things or persons must be "objectively relevant" to the process of selecting a lawyers 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 clients 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.
• On the face of the rule it was unclear whether the limitations on websites applied to all regulations mentioned in Rule 4-7.2 such as limited illustrations.

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