(You may remember this story from October 2015; skip to the bottom for the latest update.)
I have often criticized jurisdictions that impose sanctions when attorneys advertise that they specialize in a particular area of the law based on the notion that such a claim is either "misleading" or in violation of a rule that prohibits lawyers from advertising that they are “a specialist" unless the lawyer is actually so certified by a certifying agency, the state or the ABA. I made my case against this view back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here) and was happy to see a court reaching what I believe to be the correct result here.
Florida, one of those states that is very aggressive when it comes to enforcing rules related to advertising, was among those states that held that claiming to specialize in an area of the law should be considered to be unethical. Until now. Last week, District Court Judge Robert L. Hinkle (Northern District of Florida) found unconstitutional Florida’s rule.
The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize” or have “expertise” are board certified, but the Court found no evidence to support this argument.
Because the rule essentially bans attorneys from making true statements that describe their areas of practice, the judge concluded the rule was unconstitutional under the test used to determine the constitutionality of restrictions on commercial speech under the First Amendment. Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise.
This, in my opinion, is the correct approach to the issue -- as I have argued before in other cases (see links above). The case is Searcy v Florida Bar, and you can read the Court's order here.
The ABA/BNA Lawyers' Manual on Professional Conduct has more on the story at 31 Law. Man. Prof. Conduct 566.
UPDATE 10/18/15: The Lawyer Ethics Alert Blog has a comment here.
UPDATE 3/13/16: The ABA Journal has a story on this in its February issue here.
Post a Comment