restrictions on lawyer ads touting past results unconstitutional

Rubenstein v. Florida Bar, No. 14–CIV–20786, 2014 WL 6979574 (S.D. Fla. Dec. 9, 2014)

Florida bars attorney advertising from referring to past results, which a Bar task force held in 1997 were inherently misleading to laypeople, because cases that appear similar to laypeople offer differ substantially to the law; past results don’t show competence or fitness on any particular matter; laypeople can’t judge well what counts as a good result versus a bad one—an apparent success might be a failure and vice versa; and success or failure don’t necessarily reflect on an attorney’s ability or performance.  Conclusion: “Only a person with legal training and experience in the particular field and a knowledge of all the facts would be in a position to accurately judge how a particular result reflects upon the lawyer.”  The rules applied to radio, billboards, and TV; most websites and email were separately regulated and didn’t have a blanket ban on using past results.  The Bar didn’t link its recommendations to any specific data or findings from surveys, focus groups or data analysis.

In 2007, the Bar was directed to study the issue again, and in 2013, the Supreme Court of Florida adopted a completely revised set of attorney advertising rules.  Now, advertising could refer to past results that were “objectively verifiable,” and the restrictions weren’t based on the advertising medium.

The Bar reasoned that “[t]he U.S. Supreme Court has generally struck down regulations restricting advertising truthful information;” that “[o]f those responding to the survey on public perception of lawyer advertising, 74% indicate that past results are an important attribute in choosing a lawyer[; i]t is clear that the public wants this information available to them;” and that “[m]ost of those Florida Bar members who provided written and oral comments also noted that the lawyer advertising rules should not prohibit truthful statements regarding past results.”

Rubenstein developed an ad campaign about past recoveries for clients.  The Bar issued opinion letters approving some and rejecting some, including some that could comply with appropriate disclaimers.  For example, Rubeinstein submitted a TV ad animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting the words “COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each case.”

In 2014, the Bar issued new “Guidelines for Advertising Past Results.” The Guidelines advised that inclusion of past results “carries a particularly high risk of being misleading,” requiring more information than usual ads.  Display, radio, and TV ads couldn’t effectively communicate the necessary information and couldn’t comply with the rules.

The ABA’s Model Rules of Professional Conduct don’t have blanket bans on references of past results.  Most states follow the ABA approach, but 6 require references to past results to be accompanied by a disclaimer.  No other state barred past results entirely in any media form.

As a result of the Guidelines, the Bar withdrew some of its prior approvals of Rubenstein’s ads.  The Bar also told Rubenstein that certain ads also violated the rules by stating that the firm obtained a specific recovery and omitting facts necessary to avoid misleading consumers—in this case, they advertised gross recoveries, rather than the amount actually received by the client.  Rubenstein didn’t challenge the application of that rule.

The Bar also commissioned a survey, currently in progress, to determine whether ads containing references to large-dollar recoveries were misleading, and how well disclaimers worked. This research was in progress when the opinion issued.

Attorney advertising is commercial speech protected by the First Amendment. The court found that the challenge was quasi-facial, not just as-applied: plaintiffs were challenging the ban on TV and radio advertising of past results.  Attorney ads with past results statements were at most potentially misleading, not necessarily misleading.  Intermediate scrutiny applies to bans on commercial speech that isn’t false or inherently deceptive: Central Hudson asks whether the ban (1) promotes a substantial governmental interest; (2) directly advances the interest asserted; and (3) is not more extensive than necessary to serve that interest. 

Discussion: And here we get to the immense swamp of “inherent” misleadingness, a concept the Supreme Court has invoked but never defined, and certainly not with reference to ordinary legal concepts of misleadingness.  The Bar regulated this speech because it deemed past results claims to carry a high risk of misleading consumers.  The court in this case understood that claim to be a concession that such ads are only likely or potentially misleading.  But “actually” misleading ads never have to mislead everyone; usually likelihood of misleadingness establishes misleadingness for, just by way of example, the Lanham Act.  That is, a high risk of misleading reasonable consumers is misleadingness.  What else could “inherently” misleading be?  Even false ads won’t fool everyone.  Also, of course, this analysis has huge implications for the constitutionality of practically everything the FTC does, not just the endorsement and substantiation guidelines.

Anyhow, the Bar conceded that Central Hudson applied, and the court also noted that no other state had found this blanket media ban necessary.  Public Citizen, Inc. v. La. Attorney Disciplinary Bd., 632 F.3d at 219, like this case, struck down a rule barring attorney communications containing references to past successes or results except by client request.  It’s possible to present past results in a non-misleading way, as opposed to promising results.

The court found that the rule supported three substantial governmental interests. The record reflected that the rule was part of a scheme for protecting the public from false or misleading lawyer claims; promoting the provision of useful information; and preventing “advertising that contributes to disrespect for the judicial system” or that “causes the public to have an inaccurate view of the legal system,” all of which were substantial.

However, the Bar failed to show that the restrictions advanced the government’s interests in a direct and material way.  Mere speculation or conjecture is insufficient; the government needed to show that the harms at issue were real and that the restriction would in fact alleviate them materially.  The Bar failed to meet its burden of showing that restrictions on use of past results in attorney advertising supported its interests.

Instead, the record evidence showed that consumers wanted more “useful” and “factual” information to help them chose an attorney. Many consumers were interested in attorney “qualifications,” “experience,” “competence” and “professional record (i.e., wins/losses).” In addition, the Bar’s surveys showed that negative attitudes about legal system and lawyers consistently declined over the relevant survey period, despite the increase in quantity and breadth of attorney advertising.  The Bar’s blanket assertions that the use of past results was misleading to the untrained public and that past results are not informative about competence or fitness were not backed by evidence.  The Bar’s survey showed that 74% of consumers believed that past results were an important attribute in choosing a lawyer.  Also, the Bar’s prior report explained that there was no reason to distinguish among media. 

But the Bar didn’t provide any factual support when it reversed course in 2014. “In the absence of evidence—especially in light of the fact that the Bar continues to permit the widespread use of past results in other advertising media—[the Bar’s rationale] amounts to mere conjecture and speculation.” The pending survey wasn’t before the court, and the Bar didn’t ask the court to wait for the outcome.  It wasn’t enough to fear that people would get unrealistic expectations and make bad decisions with truthful information.  However, if the Bar developed sufficient evidence, the restriction wouldn’t necessarily be unconstitutional for all time.

The court continued that the rule wasn’t properly tailored to the asserted interests.  Central Hudson’s fit requirement doesn’t require perfection, but it does require reasonability—a restriction can’t be broader than reasonably necessary to prevent deception.  The Bar didn’t show that blanket bans on display ads, TV, and radio were necessary, or that lesser restrictions such as a disclaimer or required language wouldn’t suffice.

Thus, Rubenstein was entitled to injunctive relief; on this record, “there is no attorney subject to the Rules as to whom the Guidelines’ blanket prohibition on advertising using of past results in indoor and outdoor display, television and radio media could survive scrutiny under the Central Hudson standard.”