In an era when toddler birthday parties are inspired by commercials for personal injury lawyers, it can be easy to forget that just a few decades ago, attorneys were prohibited from advertising their services. In 1977, however, the U.S. Supreme Court struck down those blanket bans, holding that "truthful advertisement concerning the availability and terms of routine legal services" is protected commercial speech under the First Amendment. Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). Cf. Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (1985) ("The States and Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading * * * or that proposes an illegal transaction * * * ."). In reaching that conclusion, the Court held that attorney advertising is not "inherently misleading," and noted that it was "peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision." Bates at 374.
The Florida Bar recently tested the limits of Bates by barring attorneys from advertising past results on indoor and outdoor displays, as well as on radio and television. Rubenstein v. Florida Bar, 72 F. Supp. 3d 1298, 1304 (S.D. Fla. 2014). With that prohibition, Florida became the only state to prohibit attorneys from advertising their past results in any particular medium. Id. at 1305.
Attorney Robert Rubenstein sued the Florida Bar over the ban, arguing that his television commercial 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," was permissible under the First Amendment. Id. at 1304. In response, the Florida Bar argued that its advertising rule (1) protected the public from "false, misleading, or deceptive information," (2) promoted attorney advertising that provides useful information, (3) prevented advertising that "contributes to disrespect for the judicial system or that causes the public to have an inaccurate view of the legal system." Id. at 1314 (internal quotation marks omitted).
The court struck down the Florida Bar's rule as an unconstitutional restriction on commercial speech. Although the court found that the interests of the Florida Bar were "substantial," it held that to advance those interests, the bar could not resort "to the naked paternalism of protecting the public from truthful information." Id. at 1317. The court criticized the Florida Bar for ignoring its own consumer survey in which 74% of respondents indicated that "past results are an important attribute in choosing a lawyer[.]" Id. It also held that the bar had not "demonstrated that the prohibition's breadth was necessary to achieve the interest advanced, or that lesser restrictions – e.g., including a disclaimer, or required language, would not have been sufficient." Id. at 1318.
While other states do not ban advertising past results per se, many (like Ohio) cast a suspicious eye on the practice. See Ohio R. Prof. Cond. 7.1, Cmt. 3 ("An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.") (emphasis added).
While protecting the reputation of the legal profession is laudable, state supreme courts and bar associations should remain cautious about restricting the free flow of truthful information to consumers of legal services. Such rules may very well violate the First Amendment.
