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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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