Lawyers Have a First Amendment Right to Advertise “Past Results”

free-speech-zoneYet another federal court has struck down a ban on advertisements containing information about “past results.” See Rubenstein v. The Fla. Bar, No. 14-CIV-20786-BLOOM/VALLE (S.D. Fla. Dec. 8, 2014). The Florida rules of professional conduct provide that “[a] lawyer may not engage in deceptive or inherently misleading advertising . . . . Deceptive or inherently misleading advertisements include . . . references to past results unless such information is objectively verifiable . . . .” See Rule 4-7.13, Rules Reg. Fla. Bar (2013).  In adopting the prohibition, the Florida bar was purportedly attempting: “to protect the public from misleading or deceptive attorney advertising; to promote attorney advertising that is positively informative to potential clients; and to prevent attorney advertising that contributes to disrespect for the legal system and thereby degrades the administration of justice.”

The court was not persuaded: “The Bar has failed to demonstrate that its restrictions advance the governmental interests at play. For that reason alone, the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines are unconstitutional.”1 But the court when further:

The Guidelines amount to a blanket restriction on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar has not demonstrated that the prohibition’s breadth was necessary to achieve the interest advanced, or that lesser restrictions – e.g., including a disclaimer, or required language – would not have been sufficient. The Bar has failed to meet its burden under this prong as well.

The United States Fifth Circuit Court of Appeals in 2011 struck down Louisiana’s nearly-identical advertising restriction (Louisiana Rule 7.2(c)(1)(D)). See Public Citizen Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011).

  1. The court noted that the Bar’s evidence actually helped the challengers: “Rather than proving that its rules on the use of past results are necessary to protect consumers, the record evidence accumulated by the Bar actually undermines its position. The data collected between 1995 and 1997 toward the 1997 Task Force Report – to the extent probative – showed that consumers wanted more ‘useful’ and ‘factual’ information to help them chose an attorney. The supporting survey results explain that large majorities of consumers were interested in attorney ‘qualifications,’ ‘experience,’ ‘competence’ and ‘professional record (i.e., wins/losses).’ They also revealed that negative attitudes about legal system and lawyers consistently declined over the relevant survey period, despite the increase in quantity and breadth of attorney advertising.”