Calling yourself an expert may be protected speech

Scott Forsyth, The Daily Record Newswire

Attorneys like to complain about the advertising done by their brethren. Unseemly and the root of much that ails the profession, they moan.

If you are of this school of thought, and I am not, you will not like a case lost by the Florida Bar last month. Going forward, a Florida attorney may call himself an expert or a specialist, Searcy v. Florida Bar, No. 4:13-cv-00664 (N.D. Fla. Sept. 30, 2015).

The Florida Bar zealously regulates attorney advertising, for better or worse. It requires an attorney to submit an ad to its Ethics and Advertising Division for approval before publication. It will not approve an ad if the ad contains "deceptive and inherently misleading" statements or represents an attorney is "a specialist, an expert, or other variations of those terms." An example of misleading statements is "references to past results unless such information is objectively verifiable."

The Florida Bar does have a program whereby an attorney may become certified in a particular field of law. An attorney may advertise his certification.

The Florida Bar has this power in part because, unlike the New York State Bar, it is an arm of the State of Florida. To practice in Florida an attorney must be a member of the Florida Bar.

Enter the personal injury law firm Searcy Denney Scarola & Shipley PA of Tallahassee. It submitted for approval 13 pages from its website and materials from its blog.

On the website the firm made several political statements, such as "when it comes to 'tort reform,' there is a single winner: the insurance industry." It also asserted "32 years of experience handling mass tort cases, resulting in justice for clients" and being "one of the few law firms in the country to successfully represent innocent victims of dangerous herbal supplements."

The Ethics and Advertising Division, to quote the court, "provided rather remarkable responses" to the submission. The political statements were not objectively verifiable and thus prohibited. Similarly, the assertions about handling mass tort cases and representing herbal supplement victims were prohibited because "justice" and "successfully" were not objectively verifiable. Apparently, the Division also disapproved of the assertions because they implied the firm's attorneys were specialists or experts.

The partners sued, alleging the bar violated their First Amendment rights. In particular, they attacked the two rules invoked to strike their postings.

In its pleadings, the Bar backed off from its "obviously unconstitutional position" the political statements could not be posted. But it held firm the assertions violated the rules prohibiting misleading advertisements and statements on expertise.

On its face the objectively-verifiable rule does not proscribe a statement about an attorney achieving justice or success for clients. The plaintiffs did not appeal the decision of the Division to the Board of Governors. The board could have interpreted the rule in a constitutional manner. The plaintiffs' failure to appeal made their challenge of the objectively-verifiable rule premature, so held the court.

In dicta the court strongly hinted if the board did back the decision of the Division, it would have found the rule as applied to be unconstitutional.

On the other hand the no-expert rule clearly limited what the plaintiffs can say and their challenge of the rule was ripe.

Lawyer advertising is commercial speech, which, like any other form of commercial speech, a state may regulate to protect the public, Bates v. State Bar of Ariz., 433 U.S. 350 (1977). If the speech concerns unlawful activity or is misleading, a state may freely regulate it, including prohibit it.

If the commercial speech is lawful and not misleading, a state may regulate it only if the state demonstrates (1) the interest behind the regulation is "substantial," (2) the regulation "directly advances" the interest, and (3) the regulation is "not more extensive" than necessary to serve the interest, Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

The no-expert rule failed all three prongs.

The bar argued the rule was necessary to prevent consumers from believing an attorney who "specializes" was certified by the bar. The court countered the bar offered no evidence of consumer confusion. Also, the bar had narrower ways to attack the problem, if one existed. It could educate the public on the meaning of certification or require an attorney to post a disclaimer he was not bar-certified.

The bar also claimed to be protecting the "average consumer," who would not be able to verify claims of expertise without "extensive research." The court retorted the bar can and does prohibit untrue or misleading claims of expertise. However, the rule sweeps broader prohibiting even truthful claims, such as the plaintiffs' expertise in mass tort cases, an expertise the bar did not deny.

Getting certified is not an alternative, because the bar does not have a certification for mass torts and many other narrow fields. And only individuals can be certified, meaning a firm cannot advertise its expertise in any field.

It will be interesting to see how the four Attorney Grievance committees enforce these rules in light of Searcy. Hopefully the committees are aware of the decision.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Nov 06, 2015

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