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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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