House Legislators Vote for Strict Measures on Attorney Advertising

Jill Krueger
Tampa Business Journal
April 16, 2004

TALLAHASSEE -- Despite concerns that lawmakers may be usurping The Florida Bar's authority, the state House passed HB 1357, clamping down on attorney advertising.

The issue is far from clear-cut: The U.S. Supreme Court has ruled that commercial speech is a form of free speech and should be regulated only when there is proof of a compelling need.

The wording of the bill, sponsored by state Rep. David Simmons, R-Altamonte Springs, argues Tallahassee has to act because "it encourages people to not take personal responsibility, sparks frivolous litigation and demeans the practice of law."

Traditionally, regulating lawyer advertising has been the purview of The Florida Bar, which licenses and oversees professional conduct for the state's 55,000 lawyers. However, The Bar's legislative committee has thrown its weight behind Simmons' bill, encouraging its board of directors to formally endorse it.

"The Florida Bar favors the most restrictive limitations on lawyer advertising consistent with constitutional requirements," said Kelly Overstreet Johnson, The Florida Bar's president-elect.

The Bar's tough rules on attorney advertising are already widely considered to be some of the most stringent in the nation.

In fact, some judges have ruled that The Bar's rules can go too far. On one ad, attorney John Morgan with Orlando-based law firm Morgan Colling & Gilbert stated that, "One of the greatest compliments we receive is when former clients refer their friends and family to our firm." The Bar's objection: too much of a testimonial.

The current legislation goes much further. The bill bans legal advertising using any media in any way that solicits legal business for a profit. It does leave open some options for marketing.

The name of an attorney or law firm can be used in an advertising medium, such as a Yellow Pages ad. The type of practice can be identified, and the ad may reference the right of an injured person to sue. Public service-type announcements that do not solicit business are allowed.

Penalties are stiff. A single instance of prohibited advertising results in a $1,000 fine for the first offense and $10,000 for each subsequent offense.

Simmons' bill is still a Senate vote away from law. And even if it passes muster, the U.S. Supreme Court may have the last word.

Jill Krueger is a staff writer for the Orlando Business Journal, a sister publication.

Invitations To Sue Are Ads We Can Do Without

The Tampa Tribune
Mar 27, 2004

Lawyer advertising is out of control in Florida.

We are assaulted by an ever- growing number of advertisements, be they on television, radio, billboards, direct mail or telephone book.

The problem is not so much the number of ads, but the kind of ads.

Many of them are little more than solicitations - invitations to sue.

Some of the ads appear to be public service announcements, when they are really about making money.

Urging people to file suit, the Florida House of Representatives found, ``destroys the personal responsibility of individuals, fosters frivolous litigation, and demeans the judiciary and the practice of law.''

House legislation declares that the advertising onslaught has triggered a crisis in the judicial system, creating a ``compelling reason'' for the limitations placed on solicitations for profit.

Which is why House members overwhelmingly approved the measure Thursday. The Senate is expected to follow suit.

There is some question about the constitutional soundness of the bill because the U.S. Supreme Court has said legal advertising is commercial speech and cannot be banned.

But the high court has also said there can be restrictions on business solicitations for pecuniary gain.

Lawmakers have tried to rein in solicitations for profit while ensuring that legitimate advertising continues, which is important because that's how a lot of people enter the legal system.

They hire the lawyer they saw on TV.

The bill specifically says lawyers can use their names or the name of their firm in any ad. They can state their specialty and advise that people have the right to take legitimate grievances to court.

But they cannot ``incite'' or ``entice'' anyone to sue.

Interestingly, two powerful organizations that could be most impacted by a new law - the Florida Academy of Trial Lawyers and The Florida Bar - took no position on the bill.

That's because members of both organizations ,as well as their leadership, have been embarrassed by some of the solicitations that pass for advertisements.

Indeed, a recent survey of lawyers by the Bar found that 86 percent of those questioned said lawyer advertising puts lawyers in a negative light. Of those lawyers responding, only 24 percent said they advertise.

Lawyer advertising should be informational. The ads should be a marketing tool.

They should not be an invitation to sue.

This story can be found at: http://tampatrib.com/News/MGAM7405BSD.html