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Florida Bar Advertising Rules Constitutionally Attacked

The Florida Bar and William Harrell, Esq. of Jacksonville, Florida, crossed swords in the Eleventh Circuit Court of Appeals over the Bar’s Advertising Rules and Harrell’s constitutional right of free speech. The result was a partial win for both sides. Harrell v. The Florida Bar, Case No. 09-11910 (11th Cir. June 17, 2010) (available here). The lower court ruled on summary judgment dismissing Harrell’s constitutional first amendment, free speech challenge to a number of advertising rules. The 11th Circuit reversed in part, remanded in part and affirmed in part the lower court. Harrell’s core challenge centered on the use of his slogan — “Don’t settle for less than you deserve”– that he included in his advertisements for years.

However, while the motion to dismiss was pending in the trial court, Harrell received a letter from the Bar informing him that the Bar’s Board of Governors reversed sua sponte the Standing Committee’s earlier judgment that the slogan “Don’t settle for less than you deserve” characterized the quality of Harrell’s services and violated Rule 4-7.2(c)(2). The Board of Governors relented on the slogan after months of federal court litigation.

Harrell objected to the following rules: (a) Rule 4-7.1, a general prefatory rule, the comment to which limits permissible advertising content to “useful, factual information presented in a nonsensational manner”; (b) The comment to Rule 4-7.2(c)(1), which bans statements that, “[s]tanding by [themselves,] … impl[y] falsely that the lawyer possesses a qualification not common to virtually all lawyers practicing in Florida”; (c) Rule 4-7.2(c)(1)(D) which prohibits statements that are “unsubstantiated in fact”; (d) Rule 4-72(c)(1)(G), which prohibits statements that “promise[] results”; (e) Rule 4-7.2(c)(1)(I), which forbids lawyers to “compar[e] [their] services with other lawyers’ services, unless the comparison can be factually substantiated”; (f) Rule 4-7.2(c)(2), which bans “statements describing or characterizing the quality of the lawyer’s services”: (g) Rule 4-7.2(c)(3), which prohibits the use of “visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events” that are “manipulative, or likely to confuse the viewer”; (h) Rule 4-7.5(b)(1)(A), which similarly prohibits any television or radio advertisement that is “deceptive, misleading, manipulative, or that is likely to confuse the viewer”; and (i) Rule 4-7.5(b)(1)(C), which prohibits “any background sound other than instrumental music.”

In September 2008, the parties filed cross-motions for summary judgment. In a lengthy opinion, the district court granted summary judgment in the Bar’s favor, holding that Harrell’s challenge to the rejection of (a) his slogan was moot, (b) that he lacked standing to challenge the application of the nine aforementioned rules, and (c) that such a challenge in any event was not ripe. Further, while his attack on the Bar’s 20 day pre-filing rule was justiciable, on the merits that requirement did not violate the First Amendment because it did not constitute an illegal prior-restraint on speech. On this last point (the 20 day rule), the 11th Circuit agreed with the Bar and the lower court.

Although the rejection of his slogan (“Don’t settle for less than you deserve”) may have spurred Harrell to file this lawsuit, the heart of his case was a broad challenge to nine provisions of the Bar’s advertising rules on First and Fourteenth Amendment grounds. Harrell asserted, under the 14th Amendment, that the Bar’s Advertising Rules were void due to vagueness. Harrell claimed that all nine rules were “invalid in toto[,] and therefore incapable of any valid application.” Steffel v. Thompson, 415 U.S. 452, 474 (1974). Harrell claimed that the rules specify “no standard of conduct … at all … [and] simply ha[ve] no core.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982).

The 11th Circuit reversed the trial court on some issues and held that Harrell had standing to facially challenge Rules 4-7.1, 4-7.2(c)(1)(G), 4-7.2(c)(2), 4-7.2(c)(3), and 4-7.5(b)(1)(A) on vagueness grounds. For these five rules, Harrell’s claims satisfied the causation and redressability components of the standing inquiry. Harrell’s stated a “cognizable self-censorship injury, … arguably caused by the challenged rules’ alleged vagueness. As for the redressability prong, if the challenged rules are stricken as unconstitutional, Harrell simply need not contend with them any longer.” Harrell v. The Florida Bar, slip opn. 28.

“As for the remaining four rules, however, Harrell has not shown an injury-in-fact, and he therefore lacks standing to challenge them. Specifically, he has not explained, either textually or by example, how there is any arguable vagueness in the rule prohibiting statements that are ‘unsubstantiated in fact,’ Rule 4-7.2(c)(1)(D); in the rule prohibiting any communication that ‘compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated,’ Rule 4-7.2(c)(1)(I); in the rule prohibiting ‘any background sound other than instrumental music,’ Rule 4-7.5(b)(1)(C); or in the rule against misleading advertisements, to the extent it prohibits a statement that, ‘[s]tanding by itself[,] … implies falsely that the lawyer possesses a qualification not common to virtually all lawyers practicing in Florida,’ Rule 4-7.2(c)(1), cmt.” Id.

The 11th Circuit did not express an opinion as to the merits of the claims– only that Harrell made a sufficiently credible showing that the rules are unconstitutionally vague on their face. The district court will not hear these claims on the five challenged rules (useful, factual information; no promised results; describing quality; confusion).

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