In a case entitled Robert Rubenstein v. The Florida Bar, United States District Court Judge Beth Bloom of the Southern District of Florida ruled last week that it is unconstitutional for the Florida Bar to prevent a lawyer from using past results in advertising their services, saying that the Bar had the burden of establishing that the ban on the use of past results in attorney advertising supports the interests the Rules were designed to promote, and that they failed to meet that burden.
Robert Rubenstein's tv ads made claims that he had collected over $50 million for clients in the past year, and also noted that these were gross recovery amounts and that, "results in individual cases are based on the unique facts of each." The Florida Bar warned Rubenstein not to run the ads, and threatened disciplinary proceedings. Rubenstein responded by filing suit.
Notably, in 2013, the Florida Bar changed its rules to allow attorneys to include past results in their advertising if those results were objectively verifiable and accompanied by the appropriate disclaimers, so as to avoid misleading the public.
In 2014, the Bar’s Board of Governors issued new “Guidelines for Advertising Past Results.” The Guidelines note that "inclusion of past results in advertising carries a particularly high risk of being misleading," that additional information would be required to accompany such results, and that as such, billboards, radio and television advertisements were not appropriate forms of media for advertising past results. The Guidelines also contain specific restrictions and instructions regarding advertising specific dollar amounts or aggregating past results.
The Court's opinion reiterates that lawyer advertising is protected commercial speech under the First Amendment and concluded that the Florida Bar, while claiming that the inclusion of past results in tv and radio advertisements was inherently misleading, failed to provide any factual support for this claim. Indeed, surveys conducted by the Bar itself indicated that consumers felt that past results were an important piece of information when choosing a lawyer. In addition, the disparity in the rules and guidelines in allowing past results in other forms of advertising, but excluding it from billboards, television and radio ads, was troubling to the Court.
The Court concluded that, "The Bar has failed to demonstrate that its restrictions advance the governmental interests at play. For that reason alone, the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines are unconstitutional." But the analysis did not end there; the Court also held that, "The Bar has additionally failed to demonstrate that its subject restrictions on attorney speech are no broader than necessary to serve the interests they purport to advance."
But the Court went further than simply stating that the Bar's ban on Rubenstein's ads at issue in this particular case was unconstitutional. The opinion goes on to analyze the complete prohibition on attorney advertising referencing past results in indoor and outdoor display, television and radio media and to conclude that the blanket restriction is unconstitutional, stating,
The Bar can regulate attorney advertising. But, so long as it has not proven that its complete ban on advertising referring to past results in the specified media supports a substantial governmental interest, it is not justified in doing so as articulated in the Guidelines. The Bar may in the future seek to reconstitute the Guidelines by addressing and meeting its evidentiary burden, or may seek to introduce some sufficiently tailored variation of the Guidelines.
It remains to be seen whether Florida will attempt to modify the Guidelines.