By Shannon Schott • JBA board of governors
In a world dominated by creative media content, it’s hard for a lawyer to stand out from the crowd.
Many lawyers are jumping on TikTok trends, producing elaborate cinematic commercials and sending letters directly to a potential client’s door to convert good impressions into new business.
Now more than ever, navigating the line between compliance and noncompliance with the Rules Regulating The Florida Bar is complicated. What to do when you see an advertisement that appears to not comply with the rules may be unclear.
Complying with and enforcing Subchapter 4-7 of the Rules Regulating The Florida Bar, particularly in advertising, protects consumers and the profession. It is essential to review the rules regularly, even if you do not think you are advertising.
The Florida Bar’s Standing Committee on Advertising evaluates all nonexempt lawyer advertisements and all direct mail communications sent to prospective clients for compliance with the rules.
The SCA delegates the initial review function to the Ethics and Advertising Department of The Florida Bar staff. To help attorneys who seek guidance regarding the rules and examples of what is and is not in compliance, exempt or not exempt, the department created the Handbook on Lawyer Advertising and Solicitation.
Lawyers should read the handbook because the rules apply to “all forms of communication seeking legal employment in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media.”
Consequently, if you’re communicating about your legal services, there is a chance you are subject to and need to comply with the rules.
Advertisements must be submitted for review to the SCA 20 days before their planned use with a fee via check. “Presumptively valid,” “tombstone” or “safe harbor” advertisements are exempt from the SCA review process. But beware – your interpretation of the rules could be incorrect and subject you to discipline.
A favorable review from the Bar staff (or a returned filing marked as “exempt”) protects you from discipline.
Findings of compliance are binding on The Florida Bar, and attorneys may rely on a determination of compliance in the grievance process unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement.
Ethics and Advertising Department staff review only complete filings and either finds the ad in compliance with specific rules or noncompliant within 15 days. If the Bar fails to respond within 15 days, the ad is effectively “compliant.”
Lawyer advertising is commercial speech and receives constitutional protections to the extent that it is not false, deceptive, misleading or concerns unlawful activities.
Under the First Amendment, the Bar is limited in the extent to which it may regulate advertisements.
Even with limitations, the Bar regularly determines that filings are not compliant. Filers who receive a notice of non-compliance from Bar staff may appeal to the SCA. If the SCA agrees with the noncompliance findings, the filer may appeal again to The Florida Bar board of governors for the final review.
The Bar’s advertising files are public record, including approvals, unless a filer of a proposed advertisement or direct mail marks it as “proprietary” until publication.
If you’re worried about an ad that was not approved, consider submitting it now. A compliant ad that was not previously reviewed by the Bar may be submitted with a late fee and evaluated for compliance.
Attorneys who advertise without approval do so at their own risk of discipline. However, The Florida Bar generally does not act unless someone files a complaint or grievance.
While many cases prosecuted for advertising violations come from complaints filed by the public, lawyers may submit advertisements that are not in compliance with the rules to the Statewide Advertising Grievance Committee. Furthermore, submitting an ad that is noncompliant on its face to the grievance committee without additional information or a sworn complaint may be sufficient for the committee to take action.
Information on complying with the rules for all types of media is available in the Handbook on Lawyer Advertising and Solicitation, and there are quick reference checklists for a variety of media on The Florida Bar website.
Complying with the rules and filing complaints when necessary allows us to preserve the ethical and professional practice of law that this community works hard to uphold.
Shannon Schott is a partner at Plata Schott Law practicing personal injury, criminal and juvenile defense.