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AD Confusion
By Francis X. Gilpin
Associate Editor
For haters of lawyer advertising, Stetson University adjunct law professor Susan S. Demers says it could be worse in Florida. With some of the most restrictive rules on lawyer advertising in the country, the Sunshine State could be metropolitan New York.
Demers claims a Gotham area criminal defense lawyer wanted to run a series of television commercials with an actor committing a spree of crimes. In one spot, the actor, posing as a gun-wielding bank robber, removes his mask in the middle of a heist just long enough to address the camera: "What, me worry?" Then, the stickup man confidently announces that so-and-so is his attorney.
"Obviously, that's a non-compliant ad" in Florida, Demers told Pinellas County lawyers and judges assembled in the Stetson law school's Great Hall Oct. 1 for the annual Wild, Wild West Bench and Bar-B-Que conference.
But what is and isn't acceptable to The Florida Bar cannot always be so obvious. "What's considered advertising is a moving target," says Demers.
The target is expected to keep moving in the next year as the Bar hurries to complete a study and revision of those ad rules to appease Florida legislators who don't seem fond of lawyers or their promotional campaigns.
Clearwater lawyer Joseph A. Corsmeier says the affinity that Florida legislators once had for the profession is gone. Fewer than half of the lawmakers in Tallahassee today are lawyers, he says, a huge change from legislative sessions gone by.
Demers and Corsmeier, a former Bar counsel in Tampa, provided a brief history and some perspective on lawyer advertising for their audience. "I'm skipping the Greeks and the Romans today," Demers cracked.
Ever since the American Bar Association took the then-radical step of letting attorneys possess and distribute business cards in 1908, the profession has battled a public perception that it condones barratry.
But the volume of ads on billboards, in telephone directories and on TV has grown substantially since 1977. That's the year that a divided U.S. Supreme Court ruled against the State Bar of Arizona's efforts to regulate the content of ads. In a 5-4 ruling, the high court decided that the ads couldn't be regulated, except to prevent false or misleading claims.
The Arizona Bar had argued that all attorney advertising was inherently misleading.
Between 1977 and 1995, Demers says the high court heard five cases related to lawyer ads and declared the ads protected commercial speech in all five cases. The only prohibition that the high court imposed on a lawyer promoting a practice was that there would be no face-to-face solicitation of clients.
In 1995, the Supreme Court did uphold Florida's 30-day ban on soliciting the families of potential clients who might have causes of action for personal injury or wrongful death. The justices said the families deserved a period of personal privacy.
That notwithstanding, lawyers spend hundreds of millions of dollars a year on advertising and their pitches have become familiar to watchers of local TV news shows in the Tampa Bay area.
The overall trend of loosening standards for lawyer ads has helped feed the current antagonism between attorneys and politicians, many of the latter Republicans. The backlash has consumed even The Florida Bar, which is thought to be among the most vigilant regulators of lawyer ads.
In March, the Florida House passed a bill on a 103-8 vote that would have gutted the Bar rules, according to Corsmeier. About the only ads that would have been allowed under the bill would contain just the most basic information about the attorney or firm.
Similar legislation died in the Senate. But incoming Senate President Tom Lee, R-Brandon, urged Bar leaders to clamp down, or legislators would do it for them in 2005.
The Bar, which is reportedly prosecuting more than 200 lawyers for ad-rules violations, has created a task force that is expected to deliver a report on reforms to the Bar's board of governors next spring.
Although the courts have rolled back regulation of attorney ads, Corsmeier says, "the mood is to go the other way" in Tallahassee. Corsmeier, who represents lawyers facing Bar charges over advertising and other alleged ethical breaches, says any legislative crackdown is sure to be litigated.
In the meantime, Corsmeier urges lawyers who are thinking about self-promotion to run all video clips, broadcast scripts, print copy and Web page designs by the staff of the Bar's Standing Committee on Advertising, regardless of whether a practitioner thinks the material is exempt from required review or not.
The Bar hasn't let down its guard. The most celebrated recent prosecution has been against a Fort Lauderdale personal-injury firm.
Pape & Chandler PA promotes a memorable toll-free number, 1-800-PIT-BULL, in ads seeking to represent victims of motor vehicle accidents. The firm's Web site features the partners, J.P. Pape and Marc Chandler, in dark sunglasses and casual attire. Pape wears a muscle shirt astride a motorcycle and Chandler sports a pit bull T-shirt from their own apparel line.
Pape has argued that a pit bull terrier symbolizes the characteristics of strength and tenacity that he would like the public to associate with his firm. But the Bar says the imagery is an emotional appeal that is not relevant to the hiring of an attorney.
Back at Stetson, Demers and Corsmeier opened the floor for questions.
Clearwater attorney Louis Kwall, a former Bar governor, criticized what he called the uneven impact of the Bar's enforcement of ad rules.
"The bigger firms don't care if you reject their advertising because, by that time, it's already run," Kwall told GCBR after the Stetson event. "They'll just pull the ad and put up another one. The small firms have taken all their assets to buy the ad and they don't have anything left to produce another one."
Kwall would like to see the judicial and legislative branches of government come to a meeting of the minds soon. "Let's get this settled," he says. "It's a very frustrating situation."
Personally, Kwall feels lawyers should be allowed to advertise, as long as they're honest about their qualifications and the potential outcomes of a case.
The firm of Kwall, Showers & Coleman PA seldom advertises, according to Kwall. "We had a billboard once," says Kwall. "It was kind of fun."
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