A Florida Bar rule blocking a personal injury law firm from stating that it specializes in mass-tort cases is unconstitutional as applied, a Florida federal district court recently held. The court enjoined the Florida Bar from enforcing its Rule 4-7.14(a)(4), which prohibits statements “that a lawyer is … a specialist, an expert, or other variations of those terms,” unless the lawyer has been certified under the Florida Bar’s certification plan or another approved plan.

The Florida Bar is perceived by many as one of the toughest jurisdictions in the U.S. when it comes to enforcing lawyer advertising rules. The Florida firm sued the bar and some of its officers after sample pages from the firm’s website, blogs and LinkedIn profile flunked the bar’s pre-approval process, which can create a “safe harbor” for such advertising.

Unconstitutional as applied

The court said that as applied, Rule 4-7.14(a)(4) of the Rules Regulating the Florida Bar would unconstitutionally prohibit the firm from saying “it specializes or has expertise in mass-tort or unsafe-product cases, or even in personal-injury cases, even though the firm undeniably has expertise in these areas.” The court also said the rule would improperly block individual lawyers of the firm from saying they “specialized” or had “expertise” in those kinds of cases even if they handled only cases of that kind, and even if the lawyer had successfully handled many such cases.

Florida’s rule is broader than the ABA’s Model Rule 7.4(d), which bars only stating or implying “that a lawyer is certified as a specialist in a particular field of law,” unless the lawyer has the requisite state-sponsored certification. Other state ethics rules, however, are more like the Florida bar rule. In Ohio, for example, Rule 7.4(e) proscribes stating or implying that a lawyer “is a specialist in a particular field of law” without going through the state specialty-certification process.

Central Hudson test

The Florida rule was found unconstitutional under all three prongs of the U.S. Supreme Court’s 1980 test for reviewing state restrictions on lawyer advertising, as set out in Central Hudson Gas & Electric v. Public Service Commission. Under Central Hudson, a restriction on commercial speech is valid only if:

the asserted government interest in restricting the speech is substantial; the challenged restriction directly advances the asserted governmental interest; and the restriction is not more extensive than necessary to serve that interest.

The Florida rule failed the test in two ways, the district court held. First, the bar failed to offer any “empirical or even anecdotal evidence” to support its assertion that a potential client would be misled into believing that a lawyer who claimed to “specialize” in an area was indeed board certified. Such evidence is required to satisfy the burden of demonstrating that the challenged regulation directly advances the government’s interest. Instead, the court held, the bar offered only speculation that clients would be misled.

Second, the court held that the restriction was overbroad, because “the Bar prohibits even truthful claims.” The bar asserted that if it were prohibited from establishing standards as a basis for claiming expertise, “lawyers would be able to self-certify and any lawyer could claim to be an expert or specialist in any field.” The court said that the plaintiff law firm in fact had undeniable “expertise” mass-tort and unsafe-product cases, but the rule prohibited it from making that true claim because there is no board certification in those narrow fields, and law firms — as opposed to individual lawyers — cannot be board-certified.

In sum, the court held, “the Bar’s ban on truthful statements about a lawyer’s or law firm’s specialty or expertise, at least as applied to websites [including blogs and social media sites], fails all tree prongs of the Central Hudson test.”

Implications for the future?

States have a considerable investment in certification programs that aim to credential lawyers in specialty areas. Given that many also have ethics rules similar to the one found unconstitutional in Searcy, will we see a spate of constitutional challenges to those rules? It is possible, but not likely. According to the plaintiff’s lawyer in Searcy, who commented for Bloomberg/BNA earlier this month, Florida stands out in the “seriousness of its enforcement of advertising rules, which makes it more likely that a lawyer will challenge a rule.”

But counting on flying under the ethics radar is no way to run a law business. So the right choice for now is to know your jurisdiction’s rule on claiming “expertise” and to comply with it — or to challenge its constitutionality.