Florida Bar Rules on Advertising and Solicitation of Business
We are proud to include among our clients a number of lawyers and small firms. When another lawyer hires us, we know we must be doing something right, professionally speaking. It also means that our lawyer clients are smart enough to know what they don’t know about business law. You wouldn’t go to a podiatrist for a heart problem, and you shouldn’t go to a criminal defense attorney for business law, either. We help lawyers the same as other small business owners, but representing other lawyers means that being familiar with the Florida Rules of Professional Conduct. In particular, we often advise clients on navigating the rules regarding lawyer advertising.
Florida’s lawyer advertising rules apply to all forms of communication from lawyers to prospective clients. They apply to every type of communication: from telephone, to print, to the Internet, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, law firm websites, and other websites, including banners, pop-ups, websites, social networking, and video sharing media. Some of the Rules are pretty obvious: we can’t promise results; we can’t make unverifiable claims about past results; and we have to put certain disclaimers on all advertising materials. Other Rules are not so easy to decipher.
One such Rule is Rule 4-7.18 which restricts lawyers from most initial contact with prospective clients. Specifically, a lawyer may not solicit (or have someone else solicit for them) a prospective client with whom the lawyer has no family or prior professional relationship. The term “solicit” includes contact in person, by telephone, fax, or email. In other words, lawyers can’t reach out to a prospective client to ask them for their business. The rule expressly extends to how we communicate with (and are communicated about by) referral sources. There are a few exceptions. Written communication with a prospective client that is clearly marked “advertisement” in big red letters, for example. Nonetheless, it’s part of the everyday practice of law to market to prospective clients and referral sources. You just have to walk a fine line to avoid “solicitation.”
Another Rule that causes confusion is Rule 4-7.13(b)(8), which prohibits testimonials in lawyer advertising unless:
- the person making the testimonial is qualified to evaluate the lawyer;
- the testimonial regards the actual experience of the person making the testimonial;
- the information provided by the testimonial is representative of what clients of the lawyer or law firm generally experience;
- the lawyer did not write or draft the testimonial;
- the person making the testimonial wasn’t paid in exchange for the testimonial; and
- if the testimonial contains information about results obtained, the advertisement must contain a prominent disclaimer that prospective clients may not obtain the same or similar results.
Notably, where testimonials are given on social media or on review-specific web sites like bbb.org or yelp.com, where the lawyer does not have control over what is said about them, it can be hard to guage whether an often anonymous speaker is “qualified” or has “actual experience” working with the lawyer.
Perhaps the hardest rule to interpret is Rule 4-7.14, which regards potentially misleading advertisements. The Rule requires that advertisements that are subject to reasonable varying interpretations are prohibited unless they contain sufficient information to clarify the potentially misleading nature of the advertisement. Also prohibited are advertisements that contain information that is literally accurate but could reasonably mislead a consumer. The test for whether something is potentially misleading is subjective.
The Florida Bar requires that most advertising be submitted to the Bar for approval before publication. There are exceptions for editorial and factual content and other presumptively valid content that does not require Bar scrutiny.
Best practices are to avoid first contact with prospective clients: you can tell them you are a lawyer and what kind of law you practice, but you can’t say, “Call me about that DUI!” unless they first ask if you can help them. If a friend wants to refer someone to you, have them give out your business card and ask the prospective client call you themselves. Don’t send out your email newsletter to anyone who has not asked to receive it.