October 1, 2004 Gary Blankenship Senior Editor Regular News Advertising panel offers alterations Advertising panel offers alterations Senior Editor A tentative and preliminary report suggesting changes to Bar advertising rules has been approved by the Advertising Task Force 2004 and, as this News reaches Bar members, should be posted on the Bar’s Web site for comments.The task force has rejected for now a proposal to require that all nonexempt ads be reviewed by the Bar before publication or broadcast, but instead offered an incentive program to encourage lawyers to have their ads prescreened.The panel also could not reach agreement on whether the 30-day prohibition on direct mail advertisements in personal injury cases should be extended to criminal cases. The task force is offering three options on that.Task force Chair Manny Morales told the group, which met by conference call September 9 following the cancelation of the General Meeting because of Hurricane Frances, that the plan is to get lots of input before meeting again at the Midyear Meeting in January.“I’d really like to get to the point that here is what we’ve come up with for a draft for the rules and get comments,” Morales said. “By the time we have our meeting in January and have heard in writing, in e-mail, and testimony at the January meeting, we’ll be close to a final report after that.”That report will go to the Bar Board of Governors, which will send any final suggested rule amendments to the Supreme Court. The task force planned to write up the actions at its September 9 meeting, circulate them to all its members (several missed the teleconference), make any final adjustments, and then have the preliminary report posted on the Web site (www.flabar.org) by October 1. Comments on that draft can be sent to Bar Ethics Counsel Elizabeth Tarbert at The Florida Bar, 651 E. Jefferson St., Tallahassee 32399-2300, or at [email protected](Note: Because task force members were still reviewing a draft as this News went to press, some details in the preliminary report may have been changed since the September 9 meeting.)At its earlier two meetings, the task force had been unable to reach an agreement on perhaps its two most high profile issues: whether to expand the 30-day bar on direct mail solicitations to criminal cases and whether to require prescreening of nonexempt ads. Direct Mailing The group was still unable to reach a consensus on the direct mailing issue, although several members said they have concerns about direct mailings to criminal defendants.Morales, Tarbert, and other task force members said they had received many comments from criminal defense lawyers opposing limitations on their direct mailings. Tarbert reported that the Florida Association of Criminal Defense Lawyers is waiting for the task force’s final recommendation before weighing in. Despite the comments, some task force members said they remained unconvinced and wanted to hear from a broader membership spectrum.“The one thing that makes a criminal case different from a civil case is within 24 hours you’re brought before a judge and the judge tells you you should have a lawyer,” said Board of Governors and task force member Robert Rush, adding that defendants also get Miranda warnings. “We’re bombarding people who are in a very vulnerable position and I think they are as vulnerable as personal injury people.. . . There isn’t anything bad that can happen to you in a criminal case that can’t be undone by a competent attorney. There are so many opportunities where you are told to get a lawyer in a criminal case.”But task force member John Bales disagreed, and said the mailings could be helpful.“That’s like telling me when my toilet overflows I need a plumber. If it weren’t for the Yellow Pages, I wouldn’t know who to call,” he said. “These people, they know they need a lawyer; they’re told they need a lawyer, and they have no idea who to call.”The task force agreed to seek comments on three alternatives in the preliminary report:• Keep the present system where only direct mail letters in personal injury cases are subject to the 30-day waiting period.• Extend the waiting period to cover direct mail solicitations in criminal cases.• Extend the waiting period to both criminal cases and civil traffic solicitations. Some task force members noted that criminal DUI charges are frequently accompanied by civil traffic charges which could create a loophole if the waiting period is imposed on criminal cases. Ad Review On the screening of ads, the task force is recommending a voluntary system that encourages lawyers to submit an ad to the Bar for review before it is published or broadcast.The task force rejected options that included not reviewing ads at all (members could still be disciplined for rule violations), requiring prescreening of TV and radio ads only, and requiring prescreening of all ads that are not exempt from the filing requirements. (Under Rule 4-7.8, ads that contain only certain, basic information do not have to be filed for review.) Task force members questioned whether the last two options would pass constitutional muster on free speech grounds.The proposed amendment is a modification of current rules, that provide the Bar will respond within 15 days after an ad is filed. The current rule says only that if a grievance is filed, the Bar’s approval of the ad can be considered. Under the proposed rule, a lawyer would be immune from being disciplined if the Bar had approved the ad, even in error.“It’s giving you the option of ‘I’m going to voluntarily submit my ad to the Bar and they can tell me in 15 days if it’s okay,’” Morales said. “It’s giving him or her a process that no matter what happens, he or she is not going to be subjected to a grievance, but at the same time it does not require every single ad to be filed [and approved prior to publication or broadcast].. . . “If I’m going to put an ad out and I’ve got an alternative where the Bar is going to tell me it’s okay and I’m not subject to a grievance, who is not going to want to do that?”The proposed rule also provides that if the Bar fails to respond within 15 days, the ad is assumed approved and the lawyer can run it without fear of a grievance.While task force members readily agreed on that option, they wrangled over details. Morales first advocated a hard deadline of 15 days for review, with no exceptions. But Tarbert said while most ads could be done in that time frame, there would be difficulties. The most common problems, she said, are that lawyers have to be contacted to get more information and on close calls Bar staff frequently takes the ad to the Standing Committee on Advertising for guidance. Both of those typically take more than 15 days.If staff had to meet the 15-day deadline without exception, reviewers would err on the side of caution and reject those ads, she said.The task force agreed to keep the rule that the Bar must make a response within 15 days, but not necessarily a final decision.Tarbert also asked for a rule that would spare a lawyer from discipline for running an ad that violated the rules but which was accidentally approved by Bar staff, as long as the ad was corrected after the Bar notified the lawyer. The task force rejected that. Morales said if the Bar wants lawyers to use the system, then its word must be final. The task force, though, agreed the approval would not be binding if the member provided false information in the proposed ad that wasn’t discovered until after the Bar gave its okay. Other Recommendations On other matters, the task force:• Reviewed several options but decided, for the moment, not to add a definition of advertising to the rules. Members said while it might help provide some clarity, it could also create more problems that it would solve and that the definition is set by case law and court rulings.• Added language that out-of-state lawyers who advertise in Florida must follow the advertising rules. Tarbert noted that is consistent with proposed multijurisdictional practice rules pending at the Supreme Court.• Ratified that communications between lawyers, with family members, with current and former clients, and at the request of a prospective client are not covered by the advertising rules, but are subject to the general misconduct rule involving dishonesty, deceit, or misrepresentation.• Refined and expanded slightly what can be included in an ad and still be exempt from being filed and reviewed by the Bar. New exempt information includes military service information, and illustrations of the state or American flag, the American eagle, unadorned law books, diplomas, and inside or outside depictions of a courthouse.• Decided to tighten up the definition of “continuing professional relationship” as it applies to whom an attorney can solicit. Members said they don’t want attorneys approaching accident victims in a hospital merely because the attorney had served on a charitable or civic board with the victim or the victim had attended a seminar held by the lawyer. At the same time, task force members said they did not want to discourage attorneys from inviting people to their seminars or similar function. They rejected an alternative rule that would define professional relationship as a strictly current or past attorney-client relationship.• Decided to recommend a change that a spokesperson on a radio or TV ad who is obviously not an attorney would not have to be identified as a nonlawyer. Task force members said such identification could take up an inordinate amount of time on a 10-, 20- or 30-second spot and with some ads, such as on National Public Radio, it is plain that the ad reader is a station employee and not an attorney.• Recommended that lawyers’ Web pages no longer be required to state all jurisdictions where members of the firm are licensed to practice, or list the bona fide offices of the firm. But task force members said e-mail communications should be subject to all the restrictions of direct mail solicitations and that “pop-up” and “banner” Internet ads should be regulated as other ads.• Recommended eliminating most of Rule 4-7.9 which applies to information provided by an attorney or law firm upon request of a prospective client. Task force members favored little regulation of such communications, beyond that they must be truthful and not misleading, and noted most of the provisions of that rule were covered in other sections of advertising regulations.• Agreed to an amendment to the rule on lawyer referral services that requires all such services to affirmatively state in their ads that they are referral services. That change was recommended by the Bar’s Standing Committee on the Unlicensed Practice of Law. Noncomplying ads Throughout the debates on the rules, task force members reiterated their desire to simplify the rules and make them as easy as possible for Bar members to follow.Tarbert presented some Bar statistics that supported that goal. According to Bar records, in 1991-92, the first year the Bar required that ads be reviewed, 3,937 ads were filed and 87 percent of them did not comply with the rules on their initial submission. In 1994-95, it was 93 percent, and in 1997-98, it was 91 percent.For the most recent year, 2003-04, 82 percent of the 2,705 ads submitted did not comply. So far for the 2004-05 fiscal year, that number has dropped to 63 percent.