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Attorney’s Guide to Ethical Marketing: Florida

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

  • Relevant Citations:
  • Limitations on Direct Contact with Prospective Clients (Y/N): Yes
  • Permitted Forms of Marketing
    • Traditional Media (Y/N): Yes
    • Inbound Marketing (Y/N): Yes
    • Social Media Marketing (Y/N): Yes
    • Email Marketing (Y/N): Yes, in part
    • PPC Advertising (Y/N): Yes, in part
  • Mandatory Language (Y/N): Yes
  • Opt-Out Requirement (Y/N): Yes
  • Retention and Record Keeping Requirement (Y/N): Yes
  • Non-Surname Branding (Y/N): Yes
  • Date of Last Revision: 2018

Comments:

Florida has effectively refused to adopt Rules of Professional Conduct that mirror the Model Rules of Professional Conduct used in many of the other jurisdictions covered by the Attorney’s Guide to Ethical Marketing. See In re Amendments to the Rules Regulating the Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (dismissing proposed rules that mirror the direct solicitation regulations of the Model Rules). Instead, Florida utilizes a stricter approach to attorney advertising that dramatically limits content permitted therein. Florida enforces this aggressive limitation on attorney advertising by barring attorneys from collecting fees that are generated due to non-compliant advertising. See RRTFB R. 4–1.5(a) and (d).

Florida requires that all advertisements for legal services contain the name and office location of at least one firm or lawyer involved in providing services, and whether cases will be referred to other lawyers in all languages used in advertisements and in a fashion a reasonable person would consider legible, prominent, and intelligible. See RRTFB R. 4–7.12. Use of a narrator in advertisements must not give the impression that the narrator is a member of the law firm, and should include the phrase “not an employee or member of [this] law firm.” RRTFB R. 4–7.13(b)(5). With respect to the use of actors and dramatizations in advertisements, Florida requires the use of the following language: “DRAMATIZATION, NOT AN ACTUAL EVENT” and “ACTOR, NOT ACTUAL [client/attorney/etc.].” RRTFB R. 4–7.13(b)(6). Florida allows the use of client testimonials in advertisements, provided that they are made regarding matters that the client is qualified to evaluate, that the client actually experienced, that the attorney (and presumably an attorney’s representative, such as a marketing firm) did not write, that the client was not compensated for the testimonial, and that include a disclaimer that a prospective client may not obtain the same or similar results. See RRTFB R. 4–7.13(b)(8).

Florida’s Conflicting Doctrine Concerning Personal Attributes, Pit Bulls, and Advertising

Florida's limits to ethical attorney marketing

Florida’s Supreme Court ventures into the realm of of protectionist censorship.

This is going to get a bit in the weeds, but Florida has seemingly contradictory doctrine concerning … more “expressive” advertising. TLDR: Florida’s Supreme Court will pursue punishment against attorneys for emotional or expressive advertising.

Interestingly, in the comments to RRTFB R. 4–7.13, which focuses on deceptive and inherently misleading advertisements, and was last amended in 2018, the Florida Bar notes that,

The rule prohibits statements that characterize skills, experience, reputation, or record that are not objectively verifiable. Statements of a character trait or attribute are not statements that characterize skills, experience, or record. For example, a statement that a lawyer is aggressive, intelligent, creative, honest, or trustworthy is a statement of a lawyer’s personal attribute, but does not characterize the lawyer’s skills, experience, reputation, or record. These statements are permissible.

RRTFB R. 4–7.13, Comments, Characterization of Skills, Experience, Reputation, or Record.

While the Florida Supreme Court has adopted the 2018 revision to the Rules Regulating the Florida Bar, as recently as 2005, it has also taken a harsh stance against attorneys portraying themselves as aggressive. See Florida Bar, Updates to the Rules Regulating the Florida Bar. In a somewhat off the wall opinion, the Florida Supreme Court ruled that a law firm violated the RRTFB when they used an image of a pit bull in their logo and advertised themselves with the telephone number 1–800-PIT-BULL. See Fla. Bar v. Pape, SC04–40, SC04–41, 918 So.2d 240 (Fla. 2005). In Pape, the Florida Supreme Court went on a meandering trip through what it considered the scientific evidence showing the “malevolence, viciousness, and unpredictability” of pit bulls, and ruled that the comparison of the attorneys to pit bulls in the advertisements was barred by RRTFB 4–7.2 (since repealed in 2013). Id., at 8 (page numbers refer to the edition published on the Supreme Court of Florida website). The Supreme Court determined that the use of pit bull imagery was prohibited in Florida because it associated pit bulls with the “‘go for the jugular’ style of advocacy that some persons attribute to lawyers.” Id., at 12. Chief Justice Pariente went on to write that permitting the use of the pit bull image in the advertisement would make a mockery of Florida’s dedication to promoting the public trust and confidence in its system of justice. Ibid. She then mused that, were it allowed, “images of sharks, wolves, crocodiles, and piranhas could follow.” Ibid. The Florida Supreme Court then decided not only to reverse the decision of the Florida Bar permitting this advertising, but to also, sua sponte, decide the punishment for the two attorneys who used this advertising (even though the issue was not briefed by either the defendant attorneys or the State Bar).

Chief Justice Pariente is still presiding on the Supreme Court of Florida (which is proof of either the Dunning-Kruger Effect or the Peter Principle, or both), and while her 2005 decision was based on a version of the RRTFB that was repealed in part and dramatically modified in 2013, the commentary to the current version of the RRTFB offers contradictory reactions to the Pape opinion. As noted above, characterization of an attorney as aggressive was defined as permissible. See RRTFB R. 4–7.13, Comments, Characterization of Skills, Experience, Reputation, or Record. However, the comments also state, citing Pape, that implying that an attorney would engage in combative or vicious tactics would violate the RRTFB. SeeRRTFB R. 4–7.13, Comments, Implying Lawyer Will Violate Rules of Conduct or Law (as an aside, there is nothing in Pape that indicates the ad in question implied the firm would violate the law; advertisements of the firm in question, Pape & Chandler, are rather ‘tame,’ if you will pardon the pun, and can be found on YouTube).

Without delving too deeply into the First Amendment issues presented by the Pape decision, it’s worth noting that legal writers described the decision as a “ridiculous anti-advertising case” and asked “When will the profession see that it will earn the respect of the public through the personal integrity of lawyers and the provision of quality services for reasonable fees — not through some phony notion of ‘dignity’ or by treating the public like children?” David Giacalone, Fla. High Court Puts Down Pape & Chandler’s Pit Bull, f/k/a (Nov. 17, 2005).

If the Florida Bar had not cited to Pape in its most recent version of the RRTFB, the decision could be ignored as being applicable only to the older version of the law. As it stands, because the current law both seems to contradict Pape, in its commentary concerning characterizations, and embrace Pape, in the commentary concerning advertisements that imply an attorney will violate the law. As nothing in the ads, in which the two attorneys discuss their focus on personal injury litigation and affinity for motorcycles, implicates a willingness to violate the law, and as the body responsible for both enacting the RRTFB and interpreting it is the Supreme Court of Florida, on which sits the author of Pape, a cautious attorney would likely act on the assumption that the decision in Pape is still controlling.

If there is any proof that the Pape decision is poorly written and has a negative effect, its that this was supposed to be a brief summary of the rules concerning advertising by attorneys in Florida, not a lengthy discussion that implicates

  • an attorney’s First Amendment Rights,
  • the wisdom of a judicial body having final enacting power and interpretation over laws that limit the ability of attorneys to solicit clients and cases before that court’s bench,
  • the scientific basis for some jurisdictions claiming that pit bulls are a distinct breed of dog that is inherently dangerous (and the merits of a judge conducting an independent investigation into that issue, even though it is only marginally relevant to the issues in the underlying case),
  • the folly of a court that is willing to enact what it describes as a finding of guilt (as if this were a criminal case), and sentence the defendant-attorneys to punishment even as it acknowledges that neither party to the matter briefed the issue of guilt and sentencing and without hearing testimony and directly receiving evidence, as it was not the trier of fact (instead of remanding the matter to the Bar Referee for reconsideration).

Thus, I think it’s best to simply acknowledge that Florida is a jurisdiction in which attorney advertising is policed based on the personal beliefs of its Supreme Court.

Florida’s RRTFB also bars the use of appeals to emotion and celebrities in attorney advertising (although local radio personalities can record narration for advertisements provided they do not appear to endorse the advertising attorney). See RRTFB R. 4–7.15.

Florida allows direct contact with prospective clients only when they have been prior clients of an attorney or are members of that attorney’s family. See RRTFB R. 4–7.18(a). Written communications must be marked as “‘advertisement’ in ink that contrasts with both the background it is printed on and other text appearing on the same page.” RRTFB R. 4–7.18(b)(2)(B) (Assuming Florida is not concerned about the use of invisible ink, this merely means that, if the general text of the advertisement is in black, then “advertisement” should be in red or some other contrasting color.) Additionally, all written communications regarding a specific occurrence should begin with “If you have already retained a lawyer for this matter, please disregard this letter.” RRTFB R. 4–7.18(b)(2)(E). Exceptions to these requirements are made for communications between attorneys, between attorneys and their own past and current clients, between attorneys and their family, or communications requested by clients. See RRTFB 4–7.18(b)(3).

Florida requires attorneys to not only retain a copy of an advertisement for three years after its last use, along with a record of all forums in which it is used, but also requires that attorneys submit a filing of that advertisement (or a transcript/translation thereof for electronic advertisements and advertisements not in English) 20 days prior to the lawyer’s first use of an advertisement, along with a fee of $150 ($250 if submitted less than 20 days prior to intended first use), and a listing of all media in which it will appear, the schedule of its intended use, and the duration of its intended use. See RRTFB R. 4–7.19(a), (b), and (h). Attorney advertising filings will then be judged for their appropriateness under the RRTFB. The information contained on the attorney’s website and advertisements containing only the name of the firm and other administrative information referenced in RRTFB 4–7.16(a) is exempt from this filing requirement. See RRTFB 4–7.20. The RRTFB does not address whether an attorney’s social media platforms would be considered part of their website, but it is safe to assume that they would not be considered exempt from the filing requirements given the overall strictness of Florida’s advertising regulations.

Florida permits attorneys to use trade names for the names of their firms. See RRTFB 4–7.21. It prohibits the use of the name of an attorney in public office being part of a firm name unless that attorney is “actively and regularly practicing with the firm.” RRTFB 4–7.21(e).