In Re: Amendments To The Rules Regulating

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Supreme Court of Florida





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No. SC08-1181


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IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA



BAR­­ RULE 4-7.6, COMPUTER ACCESSED COMMUNICATIONS.




[February 27, 2009]



PER CURIAM.


The Florida Bar petitions the Court to consider proposed amendments to Rule Regulating the Florida Bar 4-7.6 (Computer-accessed Communications). We have jurisdiction. See art. V, § 15, Fla. Const.


Rule 4-7.6 regulates computer-accessed attorney advertising such as websites, electronic mail, and other forms of computer-accessed communications.


The Bar proposes amendments to subdivisions 4-7.6(a) (Definition); 4-7.6(b) (Internet Presence); 4-7.6(c) (Electronic Mail Communications); and 4-7.6(d) (Advertisements). The proposed amendments address changes in terminology and technology, take into account the methods the public uses to access computer advertising, recognize the vast flow of information through the Internet, and seek to provide a new approach to regulating computer-accessed attorney

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advertisements. The proposals are the result of dedicated study and vital debate by The Florida Bar's Special Committee on Website Advertising Rules (Special Committee), the Advertising Task Force 2004 (Task Force), the Board of Governors' Rules Committee, and the Board of Governors. The Court wishes to express its gratitude to The Florida Bar and its members who contributed to the development of these proposals.


On January 15, 2008, the proposals were published for comment in The Florida Bar News. In the notice, the Bar directed interested parties to file their comments directly with the Court. Thereafter, on February 26, 2008, the Bar filed the proposed amendments with the Court. The Court received only one comment.


After considering the proposals and the comment, and holding oral argument on January 6, 2009, the Court declines to adopt the proposed amendments.


The history of regulating computer-accessed lawyer advertising is a study in contrasts.1 This is most likely due to the nature of website advertising. As noted in the Bar's petition,














1. Before submitting previous proposed amendments to the Court for consideration, see In re Amendments to the Rules Regulating the Florida Bar - Advertising, 971 So. 2d 763 (Fla. 2007), the Task Force originally concluded that websites are distinguished from general advertising because the typical viewer would not access a lawyer's website by accident, but would be searching for that lawyer, a lawyer with similar characteristics, or information regarding a specific legal topic. In contrast, the Board of Governors' Citizens Forum disagreed with the Task Force and concluded that attorney websites should be subject to the same general regulations as other forms of lawyer advertising. The Citizen's Forum







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A website cannot be easily categorized as either information at the request of the prospective client, which is subject to no regulation under this subchapter but is subject to the general prohibition against dishonesty, or as advertising in a medium that is totally unsolicited and broadly disseminated to the public, such as television, radio, or print media. Although some steps must be initiated by the viewer to access a website, the viewer might not necessarily be attempting to access that law firm's website, or a law firm website at all. It is therefore inappropriate to treat a website as information upon request, because it is not the same as direct contact with a known law firm requesting information. On the other hand, the viewer is unlikely to access a lawyer or law firm website completely by accident.



Further, the purpose of rule 4-7.6 is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers' abilities to provide information about themselves to the public. Thus, in the current proposals, the Bar sought to offer an intermediate position to regulate attorney web******* The Bar urged a position between full application of all lawyer advertising rules and no regulation of websites under the lawyer advertising rules. In short, the proposals would have


reasoned that for website advertising, the public should be provided with the same protections (from false and misleading attorney advertising) that are required for more traditional methods of advertising. Thereafter, the Board voted to continue regulating websites pursuant to the general advertising regulations, except for a few specified exceptions.


Afterwards, through its study, the Special Committee determined that each substantive attorney advertising regulation should apply to attorney websites, and that websites should be subject to the same regulation as other forms of media, except websites should be exempt from the requirement that advertisements must be filed with the Bar for review. However, in December 2006, the Board voted against adopting the Special Committee's recommendation that all substantive lawyer advertising rules apply to lawyer web*******







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required that the homepage of a website comply with all the substantive lawyer advertising regulations, which are set forth in rule 4-7.2. After the homepage, the remainder of the website would not have been viewed as advertising, but would have been treated as information "upon request" of a prospective client. See R.


Regulating Fla. Bar 4-7.1(f) (Communications at a Prospective Client's Request).


The Bar believes that this approach would permit lawyers to provide information, behind the homepage, about the following, which are otherwise prohibited under the lawyer advertising rules: (1) statements that characterize the quality of legal services being offered; (2) information regarding past results; and (3) testimonials.2




In contrast to the Bar's arguments, we find that the proposed amendments are not sufficient to make material behind the homepage fall under the concept of information "upon request" (which is exempted from regulation by subchapter 4-7, pursuant to rule 4-7.1(f)). We recognize, however, that sufficient changes could be made to the rules regulating websites to make pages behind the homepage constitute material "upon request." For example, a website could require users to complete two steps on webpages before they could access result or testimonial information. First, a user could be required to complete a "Request" page with their name, address, and phone number (all required fields). Second, a disclaimer












2. The concurring and dissenting opinions discuss concerns regarding the use of testimonials that the majority agrees should be further considered by The Florida Bar. Accordingly, we are referring, by separate letter, a request to The Florida Bar that it study and define the term "testimonial."







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page could appear with the bottom of the page requiring a click on a button to indicate that the user had read the disclaimer (and an option for the user to discontinue the request for information). Only after the user navigated through these two pages would the user be able to obtain the additional information. This process would make obtaining information from a website similar to obtaining information "upon request" from a lawyer, when a potential client picks up a phone and calls a lawyer to ask for information, and then is mailed a DVD or brochure by the lawyer with the requested information.


Next, the Bar stated that there are significant difficulties in regulating attorney web******* This includes the fact that websites are not static; posted material can be constantly and easily changed. By comparison, a lawyer's printed and televised advertisements cannot be changed on an hourly or daily basis. In addition, printed, televised, and radio advertisements are usually short in duration, and convey a limited quantity of information to consumers. Conversely, websites can present voluminous amounts of information, making the Bar's review of that information an overwhelming task. Thus, as the Bar is unable to review all of the material posted on attorney websites, we suggest that the Bar consider requiring attorneys to certify their compliance with the computer-accessed communications rules. This required certification could be included on Bar members' annual dues statements, similar to the required certification of compliance with the trust







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accounting rules. See R. Regulating Fla. Bar 5-1.2(c)(5) (lawyers shall annually file with the Bar a trust accounting certificate showing compliance with the trust accounting rules). If the Bar's general investigations of websites reveal an attorney whose website does not comply with the advertising rules, the Bar could then proceed with a disciplinary investigation of the attorney, in a manner similar to when the Bar discovers violations of the trust accounting rules. See R. Regulating Fla. Bar 5-1.2(e)(1) (when an attorney fails to file the trust account certificate required by rule 5-1.2(c)(5), the Bar shall order an audit of the trust account), 5-







1.2(e)(7) (when requested by a grievance committee or the Board of Governors, the Bar shall order an audit of a trust account).


Finally, the proposed amendments would have deleted the requirement in current subdivision 4-7.6(b)(1) that a website disclose all jurisdictions where the lawyer is licensed to practice. The Bar asserts that the existing language in rule 4-







7.6(b)(1) is redundant, arguing that the disclosure of jurisdictions in which a lawyer is licensed to practice is also required in current rule 4-7.2(b)(1)(B) (lawyer advertising may include date of admission to Florida Bar and other bars, and a listing of other jurisdictions where the lawyer is licensed to practice). However, the plain language of rule 4-7.2(b)(1)(B) ("may") does not require that the website provide this information. Therefore, the existing requirement in rule 4-7.6 is necessary to protect members of the public who might find an attorney through







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computer-accessed advertising, and the requirement does not unduly burden the advertising attorney. Because a person can be located almost anywhere in the world when she finds the webpage of an advertising attorney, the rules should continue to require the attorney's homepage to clearly state the jurisdictions in which the attorney is licensed to practice.


Accordingly, the Court declines to adopt the proposed amendments to Rule Regulating the Florida Bar 4-7.6.


It is so ordered.


WELLS, PARIENTE, LEWIS, POLSTON, and LABARGA, JJ., concur.


PARIENTE, J., concurs with an opinion, in which LABARGA, J., concurs.


CANADY, J., concurs in result only with an opinion.


QUINCE, C.J., concurs in part and dissents in part with an opinion.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.


PARIENTE, J., concurring.


To say the least, the question of how this Court, through The Florida Bar, should address the relatively new technology of websites, electronic mail, and other forms of computer-accessed communications has been a difficult and complex one to resolve. As always, the Court, through its advertising regulations, endeavors to protect the public from false and misleading advertising and protect the justice system and profession from denigration by improper advertising.







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However, we must also recognize that these two strong interests must be balanced against the First Amendment protections given to commercial speech.


In my view, lawyer advertising has changed the face of the legal profession and that change has not been a positive one. To determine what extent lawyer advertising was adversely affecting the administration of justice, research commissioned by The Florida Bar Task Force on Lawyer Advertising in 1999 found:




[L]awyer advertising simply does not provide the public with the useful, factual information that it wants and needs in order to make an informed choice about the hiring of a lawyer. Significantly, the data further shows that much lawyer advertising--especially television advertising--lowers the public's respect for the fairness and integrity of the legal system.


Amendments to Rules Regulating the Florida Bar--Advertising Rules, 762 So. 2d 392, 406 (Pariente, J. concurring in part and dissenting in part) (quoting The



Florida Bar Advertising Task Force report). In addition, a survey conducted at that time "revealed that 88% of the judges believe that lawyer advertising has adversely affected the public's confidence in the administration of justice, and virtually all of those judges (95%) believe that the effect of lawyer advertising was a negative one." Id. n.8.


Despite our best efforts to regulate lawyer advertising, we have lawyers' advertisements on the sides of buses, the tops of taxis, and the backs of benches.

We see advertisements on television and hear advertising on the radio. The yellow
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pages are filled with lawyer advertising as well. The internet presents new and different challenges from those presented by other forms of lawyer advertising. In some ways, the prevalence of attorney websites is less offensive to me than advertising on television, radio, billboards, buses, taxis, and benches. The careful use of a website allows for the opportunity to convey complete and meaningful information unlike the shorthand versions seen in the other media. The majority opinion explains the history of regulating internet-based communications, recognizing the "vast flow of information through the Internet."


As the majority recognizes, the approach to regulation of internet-based communications has been a "study in contrasts." At one side of the spectrum is the view that all aspects of attorney websites should be subject to the same general regulations as other forms of lawyer advertising; on the other side is the view that all attorney websites should be exempt from lawyer advertising rules, essentially treating attorney websites as information provided to prospective clients upon request. See R. Regulating Fla. Bar 4-7.1(f) (Communications at a Prospective Client's Request).


The proposed rule before the Court represents the Bar's attempt to strike a middle ground, by making all material behind the attorney website homepage fall under the category of "information upon request," which is exempted from regulation. The Court, through its rejection of the Florida Bar's proposed rule,







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does not believe that the rule provides sufficient protection for the public and suggests ways in which a rule could be fashioned to more fully vindicate the necessity for regulation of attorney advertising. Instead, the Court has set forth alternatives that could be acceptable, beginning with requiring that any individual accessing material beyond the homepage must complete at least two steps (or two clicks of the mouse) until information appears that would be deemed the equivalent of "information upon request."


After the "two clicks," the consumer or prospective client would then be able to access information otherwise prohibited by the lawyer advertising rules: (1) statements that characterize the quality of the legal services being offered; (2) information regarding past results; and (3) testimonials. I agree that this is a reasonable compromise and one that makes sense, but I do express my concern that the issue of "testimonials" requires further definition.


Presently The Florida Bar rules do not define the term "testimonial" and the Court is requesting that The Florida Bar further study and define what is meant by the term "testimonial" and report back to the Court. Like Chief Justice Quince, I find it is these laudatory-type statements or "testimonials" that are the most troubling because they have the most potential for abuse and the most potential for further denigrating the justice system and this profession in the minds of the public.








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Finally, it is always important to remember that all lawyer communications remain subject to the general prohibition against conduct involving dishonesty, deceit, or misrepresentation. Therefore, if the information contained on the website is false or deceitful, that attorney will be subject to sanctions for such



misconduct.


LABARGA, J., concurs.


CANADY, J., concurring in result only.



Although I am sympathetic to the goal of adopting clear rules with respect to the information concerning legal service which may be provided in attorney- sponsored websites, I believe that the subject requires further study. I therefore agree that we should currently decline to adopt the rule amendments proposed by the Bar.



A central part of the Bar's proposal is to adopt provisions allowing on webpages other than a homepage three types of information: testimonials, statements about the quality of a lawyer's services, and statements concerning past results. This element of the proposal is premised on the understanding that information in these categories may currently be made available upon the request of a prospective client. I see no reason to question this understanding with respect to the category of statements about the quality of a lawyer's services. The other







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two categories--testimonials and statements regarding past results--are a different matter.



Rule 4-7.1(f) provides a general exemption from the application of subchapter 4-which regulates lawyer advertising--for "communications between a lawyer and a prospective client if made at the request of that prospective client." Rule 4-7.6(b)(3) currently provides that "[a]ll World Wide Web and home pages accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer's or law firm's services . . . are considered to be information provided upon request." Such communications nonetheless remain subject to "[t]he general rule prohibiting a lawyer from engaging in conduct involving dishonesty, deceit, or misrepresentation." Rule 4-







7.1(g). The "general rule" to which reference is made is no doubt rule 4-8.4(c), which provides in pertinent part that "[a] lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."



Rule 4-7.2(c)(1), which prohibits any "false, misleading, or deceptive communication [by a lawyer] about the lawyer or the lawyer's services," provides that a communication violates the rule when, among other things, the communication "contains any reference to past successes or results obtained," rule 4-7.2(c)(1)(F), or "contains a testimonial," rule 4-7.2(c)(1)(J). The comment to rule 4-7.2(c)(1)(J) states that the rule "precludes endorsement or testimonials,







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whether from clients or anyone else, because they are inherently misleading to a person untrained in the law." (Emphasis added.) The provisions of rule 4-







7.2(c)(1) suggest that testimonials and statements regarding results obtained may by their very nature run afoul of the general prohibition in rule 4-8.4(c) of "dishonesty, fraud, deceit, or misrepresentation," and thus would not be permissible even as information provided at the request of a prospective client.


This is a matter that should be considered and clarified before a proposal such as that presented by the Bar is adopted.



QUINCE, C.J., concurring in part and dissenting in part.


I concur in the majority's decision to not adopt the proposed amendments.


However, I disagree with that portion of the opinion that suggest that if a user has to navigate at least two pages that makes the rest of the website "upon request"


and therefore the rest of the website would not be subject to regulation by the Bar.


In addition to the input of the Special Committee on Website Advertising, the Advertising Task Force, the Rules Committee and the Board of Governors, the Board of Governors' Citizens Forum also looked at the proposed changes to the rule. The citizens forum, composed of citizens who could be consumers of legal services, recommended that websites be subject to the same substantive rules as all other forms of lawyer advertisement including submission of the filing with the







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Bar for review. Even the Special Committee on Website Advertising recommended that the substantive lawyer advertising rules should apply to websites, excluding only the requirement of filing with the Bar for review. I agree with these groups that the substantive advertising rules of the Bar should apply to web-based advertisements. It seems incongruous to me that we are considering a loosening of the advertisement rules and the allowance of more self-lauding statements, i.e., past results and testimonials, in a forum that the Bar admits it cannot adequately review and which changes frequently. I would therefore apply the advertising rules to web*******



Original Proceeding ­ Rules Regulating the Florida Bar


John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, John G. White, III, President, The Florida Bar, West Palm Beach, Florida, Jesse H.


Diner, President-elect, Fort Lauderdale, Charles Chobee Ebbets, Chair, Special Committee on Website Advertising Rules, Daytona Beach, Florida, Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida, and Mary Ellen Bateman, Director, Legal Division DEUP, The Florida Bar, Tallahassee, Florida,


for Petitioner


Timothy P. Chinaris, Montgomery, Alabama,


Responding with comments
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