Florida Law Firms Protest Bar's Online Ad Rules

While the American Civil Liberties Union (“ACLU”) and other nonprofit legal groups have been declared exempt from a strict proposal for regulating lawyer Web sites, Florida's largest law firms are starting to band together to protest the regulations, largely on First Amendment grounds. (The Florida Bar letter to the ACLU is available at www.dailybusinessreview.com/images/news_photos/63694/FlaBar_Letter_to_ACLU.pdf.)

Facing protests, lawsuits and threats of more lawsuits from lawyers, the Florida Bar has postponed rules that were to take effect July 1. The Florida Supreme Court is allowing lawyers to file comments about the proposal by Aug. 16.

Lawyers Argue First Amendment

The new rules would have barred online testimonials, summaries of case results and “deceptive, misleading, manipulative” or confusing audio or visual content. The Bar, facing protests that the rules were overly vague and unfair, offered a compromise amendment that would allow existing sites to be viewed if visitors clicked a disclaimer box.

Florida already is acknowledged to have some of the toughest rules in the nation for lawyer advertising. Many lawyers consider the latest version of online regulations a violation of their First Amendment right to free speech. Additionally, some lawyers complain that a disclaimer box could scare away or discourage viewers, including potential new clients. The Washington, DC, consumer advocacy group Public Citizen has sued the Bar over the proposed rules.

In a May 13 letter to the Bar, the ACLU of Florida (www.aclufl.org) stated it had no intention of requiring the public to click and view a disclaimer. Practically threatening a lawsuit, the civil liberties group asked the Bar to advise by June 1 whether it would be required to comply with the new Web rules.

The ACLU's site seeks to educate the public through news releases about its successes, encourage participation in civil liberties issues and allow people to seek legal assistance from the ACLU, the organization says. All actions would have been barred by the new rules.

“Because of the importance of the public education component of the ACLU, we do not intend to create a portion of the Web site to be accessible only after viewing a disclaimer page,” says Florida ACLU legal director Randall Marshall. “We believe that the postings on our Web site are fully protected by the First Amendment and that the application of this revised rule to the ACLU would constitute a violation of our constitutional rights.”

Bar ethics counsel Elizabeth Tarbert wrote the ACLU on June 28 stating the new rules do not apply to the ACLU.

“The ACLU Web site is not considered commercial speech as the Web site exists for the purpose of furthering the ACLU's political agenda and is not an advertisement for clients for pecuniary gain,” Tarbert noted.

Marshall says he was pleased with the decision and expects a host of nonprofit legal groups to be pleased, too.

Although exempted as a nonprofit, Marshall says that the ACLU is still concerned about First Amendment implications for law firms.

“I fully expect there will be litigation over this,” he says. “It sweeps far too broadly in terms of trying to eliminate whatever their perceived concerns are about misleading the public, for example.”

The ACLU, in conjunction with West Palm Beach law firm Searcy Denney Scarola Barnhart & Shipley, sent comments to the supreme court on June 25 complaining about the proposed rules.

“The Bar's proposed rule would require consumers accessing lawyer Web sites to run an Internet gauntlet through a disclaimer barrier and then a double-click barrier,” West Palm Beach solo attorney James Green wrote on behalf of the ACLU and Searcy Denney. “Given most Internet users' fears of identity theft, viruses and malware, many consumers seeking a new lawyer would turn away because the lawyers' Web site was not trusted.”

Rules Too Restrictive

Green noted that even the Federal Trade Commission opposed the Bar's new rules, stating testimonials “can convey valuable information to consumers and help spur consumers.”

“There is no indication that the new rule or the proposed amendment is the least restrictive or most consumer-oriented means to protect the public from deceptive or misleading Web sites,” Green stated.

Some law firms ' including Maltzman Foreman with offices in Miami, Los Angeles, and Chicago ' have already altered their sites to reflect the proposed rules, and some hired experts such as LexisNexis to advise them how best to do so. The firm added a pop-up disclaimer page that requires visitors to check three boxes before moving to the main content.

Several lawyers have sent comments to the court. But Florida's largest law firms are only now becoming aware of the proposal and have not yet sent comments.

A loose coalition that includes Holland & Knight, Carlton Fields, Bilzin Sumberg Baena Price & Axelrod, Hunton & Williams, Jorden Burt, and Foley & Lardner filed a petition requesting more time to submit comments.

The coalition is being organized by First Amendment lawyers Thomas Julin of Hunton & Williams and Richard Ovelman of Jorden Burt. In a ruling July 1, the state supreme court agreed to the extension.

Julin says the law firms likely will have conference calls to devise a position and file joint comments. Law firms caught on late to the fact that the proposal would have an extensive effect on their Web sites, requiring substantial reengineering. Hunton & Williams' site has more than 100,000 pages, and Holland & Knight has about 35,000 pages, according to their petition. All would have to be reviewed by the firm for compliance.

“We haven't come up with our position yet,” Julin says. “At this point, nobody is talking about litigation. For the most part, everyone was waiting for someone else to do something.”

While the American Civil Liberties Union (“ACLU”) and other nonprofit legal groups have been declared exempt from a strict proposal for regulating lawyer Web sites, Florida's largest law firms are starting to band together to protest the regulations, largely on First Amendment grounds. (The Florida Bar letter to the ACLU is available at www.dailybusinessreview.com/images/news_photos/63694/FlaBar_Letter_to_ACLU.pdf.)

Facing protests, lawsuits and threats of more lawsuits from lawyers, the Florida Bar has postponed rules that were to take effect July 1. The Florida Supreme Court is allowing lawyers to file comments about the proposal by Aug. 16.

Lawyers Argue First Amendment

The new rules would have barred online testimonials, summaries of case results and “deceptive, misleading, manipulative” or confusing audio or visual content. The Bar, facing protests that the rules were overly vague and unfair, offered a compromise amendment that would allow existing sites to be viewed if visitors clicked a disclaimer box.

Florida already is acknowledged to have some of the toughest rules in the nation for lawyer advertising. Many lawyers consider the latest version of online regulations a violation of their First Amendment right to free speech. Additionally, some lawyers complain that a disclaimer box could scare away or discourage viewers, including potential new clients. The Washington, DC, consumer advocacy group Public Citizen has sued the Bar over the proposed rules.

In a May 13 letter to the Bar, the ACLU of Florida (www.aclufl.org) stated it had no intention of requiring the public to click and view a disclaimer. Practically threatening a lawsuit, the civil liberties group asked the Bar to advise by June 1 whether it would be required to comply with the new Web rules.

The ACLU's site seeks to educate the public through news releases about its successes, encourage participation in civil liberties issues and allow people to seek legal assistance from the ACLU, the organization says. All actions would have been barred by the new rules.

“Because of the importance of the public education component of the ACLU, we do not intend to create a portion of the Web site to be accessible only after viewing a disclaimer page,” says Florida ACLU legal director Randall Marshall. “We believe that the postings on our Web site are fully protected by the First Amendment and that the application of this revised rule to the ACLU would constitute a violation of our constitutional rights.”

Bar ethics counsel Elizabeth Tarbert wrote the ACLU on June 28 stating the new rules do not apply to the ACLU.

“The ACLU Web site is not considered commercial speech as the Web site exists for the purpose of furthering the ACLU's political agenda and is not an advertisement for clients for pecuniary gain,” Tarbert noted.

Marshall says he was pleased with the decision and expects a host of nonprofit legal groups to be pleased, too.

Although exempted as a nonprofit, Marshall says that the ACLU is still concerned about First Amendment implications for law firms.

“I fully expect there will be litigation over this,” he says. “It sweeps far too broadly in terms of trying to eliminate whatever their perceived concerns are about misleading the public, for example.”

The ACLU, in conjunction with West Palm Beach law firm Searcy Denney Scarola Barnhart & Shipley, sent comments to the supreme court on June 25 complaining about the proposed rules.

“The Bar's proposed rule would require consumers accessing lawyer Web sites to run an Internet gauntlet through a disclaimer barrier and then a double-click barrier,” West Palm Beach solo attorney James Green wrote on behalf of the ACLU and Searcy Denney. “Given most Internet users' fears of identity theft, viruses and malware, many consumers seeking a new lawyer would turn away because the lawyers' Web site was not trusted.”

Rules Too Restrictive

Green noted that even the Federal Trade Commission opposed the Bar's new rules, stating testimonials “can convey valuable information to consumers and help spur consumers.”

“There is no indication that the new rule or the proposed amendment is the least restrictive or most consumer-oriented means to protect the public from deceptive or misleading Web sites,” Green stated.

Some law firms ' including Maltzman Foreman with offices in Miami, Los Angeles, and Chicago ' have already altered their sites to reflect the proposed rules, and some hired experts such as LexisNexis to advise them how best to do so. The firm added a pop-up disclaimer page that requires visitors to check three boxes before moving to the main content.

Several lawyers have sent comments to the court. But Florida's largest law firms are only now becoming aware of the proposal and have not yet sent comments.

A loose coalition that includes Holland & Knight, Carlton Fields, Bilzin Sumberg Baena Price & Axelrod, Hunton & Williams, Jorden Burt, and Foley & Lardner filed a petition requesting more time to submit comments.

The coalition is being organized by First Amendment lawyers Thomas Julin of Hunton & Williams and Richard Ovelman of Jorden Burt. In a ruling July 1, the state supreme court agreed to the extension.

Julin says the law firms likely will have conference calls to devise a position and file joint comments. Law firms caught on late to the fact that the proposal would have an extensive effect on their Web sites, requiring substantial reengineering. Hunton & Williams' site has more than 100,000 pages, and Holland & Knight has about 35,000 pages, according to their petition. All would have to be reviewed by the firm for compliance.

“We haven't come up with our position yet,” Julin says. “At this point, nobody is talking about litigation. For the most part, everyone was waiting for someone else to do something.”