Confusion Over Regulation of Lawyers' Sites In Florida

To Google or not to Google is the dilemma plaguing the Florida Bar in its protracted debate over how to regulate law firm Internet sites.

Because the Bar Board of Governors deadlocked on proposed new Web site rules at its monthly meeting on Dec. 8 in Key Biscayne, law firm sites are completely unregulated as of Jan. 1. The Board tabled its discussion until this month.

The impasse reflects the legal community's uncertainty and confusion about the brave new world of marketing to consumers via the Internet. Lawyers realize that instead of turning to the Yellow Pages, the public increasingly uses online search engines and other Internet tools to find needed goods and services.

The Florida Bar long has had some of the toughest rules in the nation on how lawyers advertise, and some of its leaders want to extend those stringent rules to Internet communications. But are law firm Web sites the same as direct mail, broadcast and print advertising? And should consumers be at least partly limited in what types of information they can access about a law firm when they do a specific Internet search?

Postponement Forced

The deadlock at the Dec. 8 meeting seemed to reflect both a disagreement about basic policy as well as confusion about the technological aspects of implementing such rules.

On the morning of Dec. 8, after a lengthy debate, the Bar Board rejected a proposal to subject law firm Web sites to the Bar's full advertising rules. Those rules prevent attorneys from offering statements on the quality of their legal services and past results, providing testimonials and offering 'manipulative portrayals.'

Then, late that afternoon, the Board narrowly rejected a revised proposal to subject only law firms' home pages to the full advertising rules. The revised proposal would have allowed firms to provide testimonials and statements about quality and results on pages inside their Web site as 'information on request.'

Under that proposal, consumers first would have to click through the home page to indicate their consent to receive more detailed information. That information would still be subject to Bar rules prohibiting fraud, deceit, dishonesty and misrepresentation.

Miami attorney and Board member, Steven Chaykin, urged approval of the revised proposal, arguing that the Bar had been considering the issue for four years and needed to finally make a decision.

But the proposal failed after Coral Gables personal injury attorney and Board member Ervin Gonzalez recommended amending it to allow the public to directly access law firms' inside pages through searches using Google and other search engines. He argued that when people do Internet searches ' for instance searching for 'Miami' and 'lawyer' and 'greenfraud' ' they essentially have consented to receiving the 'information on request.'

In an interview, Chaykin said the board wants to make sure that any requirements ' such as requiring firms to install a firewall to halt regulated information from popping up on search engines ' do not disadvantage smaller law firms. Chaykin advocates regulating Web sites like the Bar regulates advertising on other media.

'It is important for the dignity of the profession and for the protection of our present and prospective clients that all ads meet certain standards,' Chaykin said. 'Web sites are now a powerful form of advertising and information, and should meet the same standards we apply to all other advertisements.'

But Gonzalez told Internet Law & Strategy's ALM affiliate the Daily Business Review that 'limiting the access to the information needed to make an educated decision on one lawyer or another based on the lawyer's experience and past results is like going back into the Stone Age.'

In addition, he said, limiting the information Florida lawyers can offer on their Web sites gives a big advantage to out-of-state attorneys who do not have to follow Florida rules.

Rule Vacuum

In 1999, Florida became one of the first states to establish Web site rules for lawyers. Previously, the Bar applied its general advertising rules to the Web.

Currently, the Web sites of Florida Bar members can cite past results and make statements that characterize the quality of their legal services. Unlike lawyer advertisements, however, Web sites don't have to be reviewed by the Bar.

But that was expected to change at the start of this year when new advertising regulations approved by the state Supreme Court were set to go into effect. The court adopted rules requiring lawyers to clear television and radio ads with the Bar 15 days before they hit the airwaves.

Previously, lawyers had to file their ads with the Bar before they ran, but the ads were allowed to run while the Bar reviewed them. Under that system, by the time the Bar board ruled that an ad violated the rules, it often was too late to do anything about it.

In addition, the new rules require out-of-state lawyers who advertise in Florida to follow the Florida Bar's advertising rules. The Supreme Court did not issue an opinion on Web site rules because the Bar had a task force examining the subject.

But since the Bar Board could not agree on the rules Dec. 8, there could be no rules as of Jan. 1, unless the Supreme Court continues the current partial rules or develops new rules on its own, said Elizabeth Tarbert, ethics counsel for the Bar. The Bar has filed a motion for the high court to reconsider.

Florida Supreme Court spokesman Craig Waters said he does not know when the justices will rule.

Debated For Years

The issue of Web site regulation has been debated by the Bar Board for more than four years. An initial task force created to examine advertising rules recommended that Web sites be exempted from those rules on the grounds that Web sites provide information on request.

The Bar Board rejected that recommendation because Board members wanted Web sites to be more closely regulated. In the meantime, it recommended maintaining the status quo.

The Board then created the Special Committee on Website Advertising Rules, headed by Daytona Beach attorney Chobee Ebbets, to examine the issue. In an interview, Ebbets said his committee recommended that Web sites be subjected to the general advertising rules, except that Web sites would not have to be reviewed by the Bar.

That recommendation was rejected by the Bar Board, which also rejected a revised proposal that would have fully regulated only home pages.

The revised proposal stated that 'a lawyer or law firm Web site may contain information that would be considered information on request if the information is not accessible through a general Internet search but is only accessible by the view taking a specific affirmative action from a portion of the Website that complies with [the Bar's full advertising rules].'

At the Board meeting this month, an information technology expert will discuss the technological aspects of the issue.

In an interview, Miami criminal defense attorney and Board member Dennis Kainen fretted about how the proposed new Web site rules would affect lawyers like himself in solo or small practices, who have simple, unsophisticated Web sites.

Currently, he said, he has a scholarly legal article he wrote posted on his site, which cites several of his own cases. If the full Bar advertising rules are adopted for Web sites, he would have to take the article down, or else place it on an inside page.

For the past year, the Bar has temporarily stopped disciplining attorneys who violate Web site rules because many lawyers were confused by what the rules said or were unaware of their existence, Tarbert said.

To Google or not to Google is the dilemma plaguing the Florida Bar in its protracted debate over how to regulate law firm Internet sites.

Because the Bar Board of Governors deadlocked on proposed new Web site rules at its monthly meeting on Dec. 8 in Key Biscayne, law firm sites are completely unregulated as of Jan. 1. The Board tabled its discussion until this month.

The impasse reflects the legal community's uncertainty and confusion about the brave new world of marketing to consumers via the Internet. Lawyers realize that instead of turning to the Yellow Pages, the public increasingly uses online search engines and other Internet tools to find needed goods and services.

The Florida Bar long has had some of the toughest rules in the nation on how lawyers advertise, and some of its leaders want to extend those stringent rules to Internet communications. But are law firm Web sites the same as direct mail, broadcast and print advertising? And should consumers be at least partly limited in what types of information they can access about a law firm when they do a specific Internet search?

Postponement Forced

The deadlock at the Dec. 8 meeting seemed to reflect both a disagreement about basic policy as well as confusion about the technological aspects of implementing such rules.

On the morning of Dec. 8, after a lengthy debate, the Bar Board rejected a proposal to subject law firm Web sites to the Bar's full advertising rules. Those rules prevent attorneys from offering statements on the quality of their legal services and past results, providing testimonials and offering 'manipulative portrayals.'

Then, late that afternoon, the Board narrowly rejected a revised proposal to subject only law firms' home pages to the full advertising rules. The revised proposal would have allowed firms to provide testimonials and statements about quality and results on pages inside their Web site as 'information on request.'

Under that proposal, consumers first would have to click through the home page to indicate their consent to receive more detailed information. That information would still be subject to Bar rules prohibiting fraud, deceit, dishonesty and misrepresentation.

Miami attorney and Board member, Steven Chaykin, urged approval of the revised proposal, arguing that the Bar had been considering the issue for four years and needed to finally make a decision.

But the proposal failed after Coral Gables personal injury attorney and Board member Ervin Gonzalez recommended amending it to allow the public to directly access law firms' inside pages through searches using Google and other search engines. He argued that when people do Internet searches ' for instance searching for 'Miami' and 'lawyer' and 'greenfraud' ' they essentially have consented to receiving the 'information on request.'

In an interview, Chaykin said the board wants to make sure that any requirements ' such as requiring firms to install a firewall to halt regulated information from popping up on search engines ' do not disadvantage smaller law firms. Chaykin advocates regulating Web sites like the Bar regulates advertising on other media.

'It is important for the dignity of the profession and for the protection of our present and prospective clients that all ads meet certain standards,' Chaykin said. 'Web sites are now a powerful form of advertising and information, and should meet the same standards we apply to all other advertisements.'

But Gonzalez told Internet Law & Strategy's ALM affiliate the Daily Business Review that 'limiting the access to the information needed to make an educated decision on one lawyer or another based on the lawyer's experience and past results is like going back into the Stone Age.'

In addition, he said, limiting the information Florida lawyers can offer on their Web sites gives a big advantage to out-of-state attorneys who do not have to follow Florida rules.

Rule Vacuum

In 1999, Florida became one of the first states to establish Web site rules for lawyers. Previously, the Bar applied its general advertising rules to the Web.

Currently, the Web sites of Florida Bar members can cite past results and make statements that characterize the quality of their legal services. Unlike lawyer advertisements, however, Web sites don't have to be reviewed by the Bar.

But that was expected to change at the start of this year when new advertising regulations approved by the state Supreme Court were set to go into effect. The court adopted rules requiring lawyers to clear television and radio ads with the Bar 15 days before they hit the airwaves.

Previously, lawyers had to file their ads with the Bar before they ran, but the ads were allowed to run while the Bar reviewed them. Under that system, by the time the Bar board ruled that an ad violated the rules, it often was too late to do anything about it.

In addition, the new rules require out-of-state lawyers who advertise in Florida to follow the Florida Bar's advertising rules. The Supreme Court did not issue an opinion on Web site rules because the Bar had a task force examining the subject.

But since the Bar Board could not agree on the rules Dec. 8, there could be no rules as of Jan. 1, unless the Supreme Court continues the current partial rules or develops new rules on its own, said Elizabeth Tarbert, ethics counsel for the Bar. The Bar has filed a motion for the high court to reconsider.

Florida Supreme Court spokesman Craig Waters said he does not know when the justices will rule.

Debated For Years

The issue of Web site regulation has been debated by the Bar Board for more than four years. An initial task force created to examine advertising rules recommended that Web sites be exempted from those rules on the grounds that Web sites provide information on request.

The Bar Board rejected that recommendation because Board members wanted Web sites to be more closely regulated. In the meantime, it recommended maintaining the status quo.

The Board then created the Special Committee on Website Advertising Rules, headed by Daytona Beach attorney Chobee Ebbets, to examine the issue. In an interview, Ebbets said his committee recommended that Web sites be subjected to the general advertising rules, except that Web sites would not have to be reviewed by the Bar.

That recommendation was rejected by the Bar Board, which also rejected a revised proposal that would have fully regulated only home pages.

The revised proposal stated that 'a lawyer or law firm Web site may contain information that would be considered information on request if the information is not accessible through a general Internet search but is only accessible by the view taking a specific affirmative action from a portion of the Website that complies with [the Bar's full advertising rules].'

At the Board meeting this month, an information technology expert will discuss the technological aspects of the issue.

In an interview, Miami criminal defense attorney and Board member Dennis Kainen fretted about how the proposed new Web site rules would affect lawyers like himself in solo or small practices, who have simple, unsophisticated Web sites.

Currently, he said, he has a scholarly legal article he wrote posted on his site, which cites several of his own cases. If the full Bar advertising rules are adopted for Web sites, he would have to take the article down, or else place it on an inside page.

For the past year, the Bar has temporarily stopped disciplining attorneys who violate Web site rules because many lawyers were confused by what the rules said or were unaware of their existence, Tarbert said.