Disrupting the monopolistic authority of bar groups to designate lawyer expertise, a federal judge earlier this week ruled that the Florida Bar’s rule banning attorneys and law firms from stating on their websites that they specialize in certain practice areas — such as electronic discovery — is unconstitutional.
The decision by US district judge Robert Hinkle, which can be read here, enjoins officials from enforcing the rule. Until now, Florida-based attorneys could not truthfully tout areas of expertise on web-based outlets — including LinkedIn profiles and blogs — unless they held board certifications in those areas. Of the nearly 100,000 licensed lawyers in Florida, only 4,500 or so are certified by the Bar.
The ruling is a potential boon to, among others, certification bodies that have traditionally struggled to attract attorneys over fears advertising such designations would run afoul of ethics guidelines. (The bigger challenge for these groups, perhaps, is convincing attorneys that the specialties in which they offer their respective certifications are necessary or of value in the first place.)
The Florida suit arises from a challenge by the five named partners of the West Palm Beach personal injury firm Searcy Denney Scarola Barnhart & Shipley over claims they made on the firm’s site and social media. Searcy states it has “32 years of experience handling mass tort cases, resulting in justice for clients in a wide variety of circumstances” and that it is “one of the few law firms in the country to successfully represent innocent victims of dangerous herbal supplements.”
The Bar’s Ethics and Advertising Division and the Standing Committee on Advertising had said the firm could not ethically make those claims because the terms “justice” and “successfully” are not “objectionably verifiable.” Searcy could have appealed that stance to the Bar’s board of governors. Instead it sued.
“The state cannot prevent a person from advertising a lawful specialty, even if the state’s own definition of the specialty is different,” Judge Hinkle concluded in the Sept. 30 decision, saying the Bar violated the First Amendment.
‘Deceptive and inherently misleading’
The Florida ruling comes in the wake of a similar 2012 decision by the US Court of Appeals for the Second Circuit. In that case, brought by Buffalo attorney Michael Hayes, the court called unconstitutional a New York Bar rule mandating that “prominent” disclaimers be attached to claims promoting specialties or certifications not approved by the state. The ruling applied specifically to statements Hayes made on billboards and letterheads.
New York and Florida are not unique. The ABA Model Rules, for instance, permit lawyers to state they are certified as specialists only if the certification is “granted by an organization approved by an appropriate state authority,” ABA-accredited, or accredited by a bar-approved organization.
The rules challenged by the Searcy firm — Florida Bar Rules of Professional Conduct 4-7.13 and 4-7.14 — specifically prohibit:
a) “Deceptive and inherently misleading” ads such as those that make “references to past results unless such information is objectively verifiable” and;
b) “A statement that a lawyer is board certified, a specialist, an expert, or other variations of those terms,” unless the lawyer has been certified under The Florida Bar’s certification plan, another state’s comparable plan, or another certification plan accredited by The Florida Bar or the American Bar Association.
The Florida decision, which will likely be appealed, perhaps paves the way for broader challenges under First Amendment and antitrust laws to authorities banning attorney claims of specialization, or otherwise making them the sole domain of bar-approved providers. It also, of course, puts a stronger impetus on consumers of legal services to vet claims of expertise — and the organizations that purport to designate or certify such specialties.
Robert Hilson is a director at Logikcull, a preferred provider of the Florida Bar. He is also the former executive director of ACEDS, a Florida-based organization that offers certification in eDiscovery.