Proposed and Adopted Advertising Amendments

The petition also requests that the term “reasonably prominent” currently used in the rules be changed to “clear and conspicuous” in regard to certain required content. The purpose of this requested change is to provide clarity and consistency. The Bar noted that Federal Trade Commission uses the term “clear and conspicuous” and has a body of authority interpreting the meaning of the term that can be considered in enforcement.

Another requested change to the comment to Rule 4-7.18 is to modify the application of the requirement not to disclose the nature of the legal problem on the envelope of direct mail. The proposed revision makes this restriction inapplicable in situations involving widespread occurrences such as hurricanes or floods.

The Florida Bar has petitioned the Florida Supreme Court to amend the advertising rules in SC22-1294. A rule amendment was also recently adopted that directly relates to advertising issues. Tinkering with the advertising rules seems to be a never-ending process in which The Florida Bar tries to adapt to the ever changing landscape of advertising platforms.

In this most recent petition, there are several requests for amendments that generally emphasize form over substance. Perhaps the most significant requested revision is the elimination of the requirement in Rule 4-7.18(b)(2) (E) (Direct Contact with Prospective Clients) that “The first sentence of any written communication prompted by a specific occurrence involving or affecting the intended recipients of the communication or a family member must be ‘If you have already retained a lawyer for this matter, please disregard this letter.’”

The Bar took the position that the provision was “unnecessary and protects other lawyers more than consumers.” The Bar made the point that lawyers are permitted to give second opinions to persons already represented by counsel (See, Fl. E.O. 02-5). However, this proposed amendment will not give a lawyer license to solicit individuals known to be represented.

The petition also requests that a qualifying provider pursuant to Rule 4-7.22 (Referrals, Directories and Pooled Advertising) be required to work with at least four law firms as opposed to three law firms. The purpose of this requested change is to make enforcement easier. The policy of this rule is to prevent a lawyer from advertising in the guise of a qualifying provider.

One significant rule change was recently adopted to Rule 4-1.6 (Confidentiality) in SC22-1292. Although not an advertising rule, it has a direct impact on advertising issues. The new provisions allow a lawyer to respond on social media to a client review that alleges “the lawyer has engaged in criminal conduct punishable by law.” Although the application is limited, it substantially expands the response allowed by a lawyer to a misleading online review in such circumstances.

Ethics Opinion 20-1 advised that a lawyer could respond to a misleading online review with a limited response stating that “As an attorney, I am constrained by the Rules Regulating The Florida Bar from responding in detail, but I will simply state that it is my belief that the [comments/post] present neither a fair nor accurate picture of what occurred and I believe that the [comments/post] [is/are] false.”