For some reason, the Florida Bar seems to be intent in imposing the most excessive restrictions on attorney advertising. This is not entirely surprising since this is the same Bar organization that initiated the litigation that resulted in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), one of the worst attorney regulation decisions of all time, in which the Court validated regulation on speech because some might find it offensive.
Now comes news that a law firm has filed a law suit challenging 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.” You can find a copy of the complaint here. (via Legal Ethics Forum).
Max Kennerly has a comment on the lawsuit here. He argues that the Florida Bar's regulation bans lawyers from having opinions, saying "When I saw it, I had to double-check to see if it was a joke....[T]he 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.” Lawyer Ethics Alerts Blog also has a comment here.
I agree the regulation in question should be challenged. As we all know, the state can (and should) regulate statements that are misleading or false. But the fact that a statement is an opinion does not make it, by itself, misleading. This is the basis of the Florida Bar's conclusion: that an opinion is, by its very nature, misleading. And that, I suggest, is not only wrong but also misguided. Prospective clients looking for an attorney would be better informed if they know the attorney's opinions on matters that concern the prospective client's interests. I hope the challenge to the rules is successful.
