BNA’s Joan Rogers writes about a proposal by the Association of Professional Responsibility Lawyers to amend the Model Rules of Professional Conduct’s current limits on lawyer solicitation. The most significant changes would eliminate the rules’ antiquated prohibition on “real-time electronic contact” and allow in-person solicitation of “sophisticated user[s] of legal services.”
Elimination of the “real-time electronic contact” rule is long overdue. The rule is based on the dubious assumption that lawyers in chat rooms and similar online forums will be able to exert undue influence on consumers. Many law firms violate this rule by allowing chats on their websites—a feature more helpful to consumers than harmful to them. Moreover, changes in technology have eroded the distinction between “real-time” and other electronic communications. For example, text messages are normally considered real-time and email is not. But in an era where people get email notifications on their phones, what really is the difference between email and text messages?
The proposal to allow solicitation of sophisticated consumers is also a step in the right direction, but does not go far enough. The current ban on in-person solicitation is probably unconstitutional in many other contexts where there is no inherent risk of coercion or overreaching. There are also situations where any risk of overreaching is probably outweighed by the benefit to the consumer, such as solicitation of unrepresented litigants at a courthouse. Rather than carving out exceptions to a blanket prohibition, it makes more sense to prohibit in-person solicitation only in circumstances that involve coercion, intimidation, or overreaching.
David Hudson at the ABA Journal covers the two recent wins in Florida: Searcy v. The Florida Bar and Rubenstein v. The Florida Bar.
Clay Calvert, a First Amendment scholar at the University of Florida, says that “Searcy is a great example of applying Central Hudson with teeth. Judge Hinkle demanded proof, not suspect speculation or convenient conjecture, that the public will be misled by representations of expertise and specialization. Frankly, the term board-certified used by the Florida Bar seems far more appropriate for the medical professional than the legal one. The Searcy law firm does specialize in the areas it claimed, regardless of whether it was board-certified,” Calvert says.
In Searcy v. The Florida Bar, the Northern District of Florida held that the Florida Bar violated the First Amendment when it prohibited the law firm Searcy Denney Scarola Barnhart & Shipley from advertising its specialization and expertise in mass torts and other areas of law. This is our third First Amendment victory against Florida’s lawyer-advertising rules.
David Hudson at the ABA Journal covers the victory in Rubenstein v. The Florida Bar.
The case reflects the Florida Bar’s long-standing ambivalence toward lawyer advertising, which the U.S. Supreme Court held in its 1977 ruling in Bates v. State Bar of Arizona to be commercial speech entitled to protection under the First Amendment. Since then, Florida has maintained one of the strictest regimes for regulating lawyer advertising of any state in the country. In recent years, for instance, Florida was the only state with an outright prohibition against lawyers including information about past results in their advertising. Other states generally followed the lead of the ABA Model Rules of Professional Conduct, which impose no blanket restrictions on references to past results, although six states (Missouri, New Mexico, New York, South Dakota, Texas and Virginia) require references to past results to be accompanied by a disclaimer.
In Rubenstein v. The Florida Bar, the Southern District of Florida declared unconstitutional guidelines issued by the Florida Bar’s Board of Governors, which prohibited advertising of a lawyer’s past results on television, radio, and billboards.
Order denying the Florida Bar’s motion for summary judgment | Order granting summary judgment to Rubenstein Law