When I saw it, I had to double-check to see if it was a joke. The report said the Florida Bar precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” If that was the rule everywhere, then the ABA Journal’s list of top blawgs would be very dull indeed.
Could that report about the Florida Bar possibly be true? Two centuries ago Thomas Jefferson said “banking establishments are more dangerous than standing armies.” Less than a month ago Pope Francis decried how today “Human beings are themselves considered consumer goods to be used and then discarded.” But the lawyers who take on the banking establishments and hold corporations accountable for treating people like disposable goods can’t say the same?
Turns out the Florida Bar really did tell Searcy Denney Scarola Barnhart & Shipley PA that their blog violated that Bar’s most recent restrictions on attorney advertising because those statements of opinion were not “objectively verifiable.” Quite understandably, the firm has filed a First Amendment challenge to the restriction (complaint here).
Apparently this sort of excessive restriction on attorney speech is a persistent problem in Florida, with the Bar routinely coming up with interpretations of its advertising rules that thwart even the most banal content in attorney advertising. As paragraph 15 of the complaint alleges:
Since adopting the rules, the Bar has rigidly enforced the rules’ language to prohibit a wide range of innocuous advertising without considering whether the advertising was misleading or whether restricting it would violate the First Amendment. For example, the Bar interpreted a former rule against “background sounds” in broadcast advertisements to prohibit the “sounds of kids playing with a bouncing ball” and the “sound of a seagull.” Harrell v. The Florida Bar, 608 F.3d 1241, 1251 (11th Cir. 2010). And it interpreted another former rule allowing only “objectively relevant” illustrations to prohibit images of an American flag, the Statue of Liberty, and a cactus. The Florida Bar v. Pape, 918 So. 2d 240, 242 (Fla. 2005).
The Searcy complaint focuses on the Florida Bar’s new effort to interpret a prohibition on “inherently misleading” statements to include a requirement that all communications by a lawyer be “objectively verifiable.” That’s how they can justify precluding lawyers from writing anything worth reading including, I would assume, statements just like those made by Thomas Jefferson and Pope Francis. As the complaint notes, Abraham Lincoln’s own newspaper advertisement promising “promptness and fidelity” would likely not pass muster under the Florida Bar’s interpretation.
The Searcy firm, represented by the inimitable consumer justice lawyers at Gupta Beck PLLC, focuses on the First Amendment problems with the litigation, as well they should. The Supreme Court recognized way back in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) that lawyers don’t hang up their free speech rights in exchange for a law license. Probably the most recent major case interpreting Bates is the Horace Hunter case in Virginia, which upheld the requirement that a lawyer post a rather frustrating and confusing disclaimer on his blog, but which didn’t amount to an outright ban like what appears to be the case in Florida.
As I mentioned more than a year ago in the context of the Horace Hunter case, “the issue is one of false and misleading statements, not of advertising versus public commentary,” and these types of absurd restrictions on the content in lawyer advertising function more as ethics theater than as an effective check on unethical conduct by lawyers. Precluding trial lawyers like Searcy Denney from complaining on their blogs about tort reform does absolutely nothing to protect clients, it’s just a hinderance to a particular type of client and particular type of lawyer.
These sorts of restrictions aren’t obnoxious just because they’re antithetical to free speech by a group particularly well positioned to comment on our laws and governmental policy, but because of their apparent target. The practical effect of the Florida Bar’s limitations on lawyer advertisements is one-sided, falling disproportionately on lawyers who represent individuals. The most powerful interests in our society and their lawyers — the insurance defense lawyers, lawyers for Fortune 500 companies, government prosecutors — are largely unaffected, because they have no need to advertise in public for their clients and, indeed, are generally discouraged from commenting publicly on the issues of the day.
It’s the trial lawyers, the criminal defense lawyers, and the solo practitioners who represent small businesses that feel the brunt of these rules precluding them from expressing an opinion on the legal issues that affect their clients. The criminal defense lawyer who thinks sentences are too harsh? The solo practitioner whose small business clients routinely have trouble with a particular regulation? Neither of those opinions are “objectively verifiable,” and thus it’s only a matter of time before the Florida Bar turns on them.
The question here isn’t if these restrictions are a bad idea — of course they are — but how the Bar came to them in the first place. I would assume that any lawyer who has made it up to the point of sitting a Bar committee knows the role that lawyers play in commenting on the political and legal issues of the day, which leaves me wondering whether the one-sided impact of these rules was by design.