Advertising Update

first_imgKeep your faith in Recent Decisions of the Board of Governors on AdvertisingThe Board of Governors of The Florida Bar considers appeals from opinions of the Standing Committee on Advertising. The Board’s decisions on advertising issues at its most recent meeting are as follows: 1. Misleading Language in AdvertisementsRule 4-7.2(c)(1) provides that “A lawyer shall not make or permit to be made a false, misleading, deceptive, or unfair communication about the lawyer or the lawyer’s services.” A communication violates this rule if it: (A) contains a material misrepresentation of fact or law[.]”The board determined that the use of plural pronouns by a sole practitioner is false, misleading or deceptive in violation of Rule 4-7.2(c)(1).The board affirmed the committee’s decision that the following statements in a lawyer referral service advertisement which refers viewers to lawyers in car accident cases is a false, misleading or deceptive communication about the lawyer referral or services offered in violation of Rule 4-7.2(c)(1) because it implies the viewer may be entitled to money above the $10,000 PIP allowance: thousands of dollarsin injury and lost wage benefits. 2. Direct MailThe board affirmed the committee’s decision in which the committee determined that the word “advertisement” in red must appear on the lower left hand corner of the envelope pursuant to Rule 4-7.4(b)(2)(B) despite the filer’s argument that the envelope does not indicate that it is from a law firm.3. Filing RequirementThe board affirmed the committee’s decision in which the committee determined that the lawyer advertising rules apply to Internet advertisements that appear in response to a search where the lawyer has paid the search engine to cause the advertisements to appear when specific key words are used in the search engine. Thus, each advertisement must contain the name of the lawyer responsible for the advertisement’s content under Rules 4-7.6(d) and 4-7.2(a)(1) and the geographic location by city or town, under Rules 4-7.6(d) and 4-7.2(a)(2). Additionally, each separate advertisement must be filed for review.4. Quality of Legal ServicesThe board affirmed the committee’s decision determining that the URL, which appears in the advertising attorney’s direct mail advertisement, describes or characterizes the quality of the services being offered and therefore is prohibited by Rule 4-7.2(c)(2).Recent Decisions of the Standing Committee on Advertising March-September 2011At the committee’s recent meetings it made the following decisions on appeals from staff opinions on lawyer advertising:1. Misleading Language in AdvertisementsRule 4-7.2(c)(1)(A) provides that “A lawyer shall not make or permit to be made a false, misleading, deceptive communication about the lawyer or the lawyer’s services. A communication violates this rule if it: (A) contains a material misrepresentation of fact or law[.]” In addition, “[a] communication violates this rule if it: (C) fails to disclose material information necessary to prevent the information supplied from being false or misleading[.]”The committee determined that the statement “You may be eligible to receive up to $10,000 in benefits, possibly much more.. . Your fault or not!” is a misleading statement in violation of Rule 4-7.2(c)(1), because of their prior standard that any amount that is not $10,000, which is connected to the PIP statute, is misleading because there is no basis to make that statement.The committee determined that the following statement is misleading for a lawyer referral service to advertise: Injured…can’t work…you may be entitled to Super Lube, Super Suds Carwash, Stewardship Drycleaners, Crepevine, 1 Fresh Stir Fry, Crystal River Seafood, Bagel Bagel Cafe Advertising Update Dec 01, 2011 Prepared by the staff of the Standing Committee on Advertising Advertising Updates Even if you’re out of work, can’t pay your bills, and don’t have a vehicle, 1-800-Need-Help is here. super heroes A majority of the committee members commented that a proposed website is a lawyer referral service under Rule 4-7.10, Rules Regulating the Florida Bar, based on its proposed operational model: 1) lawyers, law students, expert witnesses, and the public could use the website at no charge as an information, communication, and networking hub to post information such as resumes and job openings; 2) at no charge members of the public could use search engine technology to ask law-related questions, seek law-related information, or run a search for lawyers; 3) the website would charge lawyers a fixed, periodic fee to participate in the website’s “find a lawyer” feature which would show standardized information such as a lawyer’s name, physical address, telephone number, email address, areas of practice, bar admissions, years of experience, and board certifications to members of the public seeking a lawyer; and 4) the website would sell advertising space.The information provided in this article is for educational purposes. The content of any advertisement noted in this article may constitute the intellectual property of the advertising lawyer or another person and use of any of the content of the advertisements may require permission of the copyright holder. If you have any questions regarding lawyer advertising, call the Ethics Hotline at 1-800-235-8619 and we will be happy to assist you. In addition, the key tags entitle you to a 15% discount at the following local businesses: . Some super heroes prefer fighting crime wearing a business suit.[name of attorney] Law Firm defends investors from fraud; patients from dangerous drugs and devices; consumers from identify theft; whistleblowers from retaliation; and employees from discrimination.The committee members commented that removing Super Lawyers Magazine and/or adding a disclaimer stating that “[Attorney] is not an actual super hero” will not resolve the violation.Additionally, the committee determined that the phrase “Call The Wizard” characterizes the quality of legal services in violation of Rule 4-7.2(c)(2).The committee also determined that the reference to the advertising attorney’s book, “The Key to Hiring a Great Bankruptcy Lawyer,” characterizes the quality of legal services in violation of Rule 4-7.2(c)(2) because it is a self-published book offered by the filer to prospective clients.3. Promising ResultsRule 4-7.2(c)(1)(G) prohibits any statement in lawyer advertising that promises results the lawyer can achieve. The committee determined that the statement Avoid Probate & Taxes promises results in violation of Rule 4-7.2(c)(1)(G).A majority of the committee commented that the statement Learn How to Avoid Probate and Taxes in the context of an advertisement for a seminar on estate planning promises results. The committee commented that the filer could add may be able to avoid probate and help minimize taxes to make the advertisements compliant.The committee affirmed staff’s opinion determining that a law firm’s slogan, Your Life A New Way, promises results in violation of Rule 4-7.2(c)(1)(G).The committee determined that the following language promises results in violation of Rule 4-7.2(c)(1)(G):You can be entitled to tens of thousands of dollars in benefits for your pain and suffering.You may be entitled to up to $10,000 or more depending upon the circumstances.The committee commented that the filer must state the following for the language to comply:You may be entitled to up to $10,000 in medical benefits and lost wage benefits.In response to staff’s request for guidance, a majority of the committee commented that the following language promises results, in violation of Rule 4-7.2(c)(1)(G):Save My Home Law GroupSave My Homehelp.savingmyhome.infoIn addition, in response to staff’s request for guidance, a majority of the committee commented that the firm name “Stop Taking Our Property, PLLC” is impermissible as it promises results in violation of Rule 4-7.2(c)(1)(G).The committee determined that the following language is permissible under Rule 4-7.2(c)(1)(G) because it does not state that prospective clients will obtain any specific result:Trial Lawyers Get: Responsive to all your needs & questions Effective; our goal is the best results for your case Steadfast; we stand by you Understanding your concerns Loyalty; we are on your side Tenacious; we will support you with all our resources Success; what you’re looking for when you put your case into our firm’s hands.The committee also determined that the following italicized language does not promise results:Victims of automobile and motorcycle accidents deserve to be compensated. In order to get every dime you are entitled to from the insurance company, sometimes you need an attorney who has the experience, expertise and ability to try that case.Look after a car accident you don’t want just a lawyer, you want an experienced advocate –an expert attorney who can guide you through the claims process and help maximize your recovery from the insurance company. I’m [name of attorney], call me. 4. TestimonialsR ule 4-7.2(c)(1)(J) prohibits language which contains a testimonial. The committee reversed staff and determined that the following statements in a television commercial in which a person with a microphone in hand interviews pedestrians do not contain testimonials in violation of Rule 4-7.2(c)(1)(J) as long as a prominent disclaimer appears on the screen stating it is a dramatization:Interviewer:…[W]ho would you call?Pedestrian: I’d call 1-800-LAWYERS.Interviewer: If you were in a car or motorcycle accident…?Pedestrian: I’d call 1-800-LAWYERSInterviewer:. …injured and it wasn’t your fault?Pedestrian: 1-800-LAWYERS.Interviewer: If you needed a lawyer, who would you call first?Pedestrian: I’d call 1-800-LAWYERS.Interviewer: For car accidents?Pedestrian: 1-800-LAWYERS.Interviewer: When you’ve been injured?Pedestrian: 1-800-LAWYERS. 1-800-LAWYERS! They’re for me!Interviewer: So, what would you do if you needed one?Pedestrian: I’d call 1-800-LAWYERS. 1-800-LAWYERS…good lawyers for accidents. 1-800-LAWYERS…experienced lawyers! 1-800-LAWYERS! They’re for me!However, the committee did determine that the phone number, “1-800-LAWYERS,” is considered a trade name under Rule 4-7.9(b) in the context of these advertisements.5. SolicitationIn response to staff’s request for guidance, a majority of the committee commented that it is impermissible in-person solicitation in violation of Rule 4-7.4(a) for an attorney advertisement containing a firm’s name, city, website to be printed on wristbands that are given out at facilities where all admittance is over 21 years old to identify members of a special group, such as bachelorette, birthday or other special occasions, would not identify any particular area of practice. The committee members stated that a factor in the decision is that the attendees would be required to wear the wristband in order to attend the event.However, the committee commented that it is permissible for an attorney to advertise on a pizza box because the advertisement would be one of 5 or 6 ads for different businesses, would be attached to the pizza box, regardless of whether it is picked up or delivered and the advertisement would be limited to a photograph of the attorneys, the firm name, address and fields of practice.6. Give AwaysThe committee reversed staff’s opinion and determined that the following language is not prohibited by Rule 4-7.2(c)(14) because the lawyer does not offer something of value to someone for recommending the lawyer’s services and is not providing financial assistance to a client in connection with pending or contemplated litigation in violation of Rule 4-1.8(e): They’ll even provide transportation to your appointments and take care of your ticket.The committee noted that a lawyer referral service cannot use a third party to do something lawyers cannot do pursuant to Rule 4-8.4(a).In addition, the committee determined that it is misleading in violation of Rule 4-7.2(c)(1) and A-09-1 for an attorney, who is a retired circuit court judge, to be identified as “Trial Resolution Judge [John Doe]” in a print advertisement and photograph promoting his private voluntary trial resolution business, despite section 44.104, Florida Statutes which provides for a method of private trials. It is also misleading for an attorney to wear a black judge’s robe in a print advertisement photograph promoting his private voluntary trial resolution business.In response to staff’s request for guidance a majority of the Standing Committee on Advertising members commented that it is misleading under Rule 4-7.2(c)(1)(C) for a law firm that hires nonlawyers and out-of-state lawyers to represent clients as advocates before the Social Security Administration to fail to include a disclosure that nonlawyers and out-of-state lawyers will represent the clients in advertisements for social security disability matters.2. Quality of Legal Service sThe committee determined that the following italicized language relating to an attorney selected for inclusion in Super Lawyer Magazine describes or characterizes the quality of the services being offered and therefore is prohibited by Rule 4-7.2(c)(2): In response to staff’s request for guidance, a majority of the committee commented that a direct mail communication that is mailed to developers congratulating them on new construction contracts including a G-clip (golf clip with tees and ball marker) and golf balls, is not a violation of Rule 4-7.2(c)(14) which prohibits a lawyer from offering something of value to someone for recommending the lawyer’s services and is not providing financial assistance to a client in connection with pending or contemplated litigation in violation of Rule 4-1.8(e).7. Lawyer Referral Serviceslast_img

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