The Florida Bar’s current advertising rules are so restrictive that they would land even Abraham Lincoln in trouble for stating in an 1852 newspaper advertisement that his law firm handled business with “promptness and fidelity,” a recently filed lawsuit claims.

The personal injury law firm of Searcy Denney Scarola Barnhart & Shipley P.A. filed the complaint in December 2013 in the U.S. District Court for the Northern District of Florida.

The lawsuit seeks a declaratory judgment that the Florida Bar’s restrictions on lawyer websites, blogs, Social Media and other forms of Internet marketing violate the First Amendment and are unconstitutionally vague. It also seeks an injunction that would keep the Bar from enforcing the rules.

Because my employer, Consultwebs.com, works with several Florida law firms, we have closely monitored the Florida Bar’s advertising rules. Our Content and Social Media teams are keeping a close watch on this case as well.

Check out the Florida Bar’s rules summary and the Florida Supreme Court order adopting the rules. What do you think: Are they reasonable or overly restrictive?

The Latest Florida Internet Advertising Controversy

As the 21-page complaint notes, Florida’s lawyer advertising rules have a history of generating controversy and legal challenges. Since 2000, federal courts twice have found the rules to be in violation of the First Amendment, the complaint states.

The dispute in this case stems from amendments to the lawyer advertising rules that were adopted in January 2013 by the Florida Supreme Court.

The rules essentially subject law firms’ Internet marketing efforts—websites, blogs, online banner ads (pay-per-click), pop-ups, videos and use of Social Media sites like Facebook, Twitter and LinkedIn—to the same rules that apply to all forms of lawyer advertising.

In particular, the rules prohibit “deceptive and inherently misleading” advertisements, including ones with statements that:

• Omit “pertinent” facts that are necessary to prevent misleading consumers, and
• Cannot be “objectively verifiable.”

According to the complaint, after the adoption of those amendments, the law firm reviewed its website and concluded that “strict compliance” with the rules would force the firm to “take down substantial portions of its websites at a cost of tens of thousands of dollars.”

The firm sought guidance by sending a sample of 13 Web pages to the Florida Bar and requesting an advisory opinion. The pages included the firm’s website home page, articles from the firm’s blog and its LinkedIn profile page.

In particular, the firm asked the Bar to clarify what would satisfy the “objectively verifiable” requirement and what “pertinent” information would be needed to verify statements such as the firm’s claim that it has “a record of significant success for thousands of clients.”

The Bar’s response: Each submitted page violated some aspect of the amended rules.

Problems Identified by the Florida Bar

According to the complaint, the Bar found that the following statements of opinion on the law firm’s blog violated the “objectively verifiable” requirement:

• The days “when we could trust big corporations… are over”
• The government’s regulation of “Corporate America’s disregard of consumer safety has been lackadaisical at best”
• “When it comes to ‘tort reform,’ there is a single winner: the insurance industry.”

Additionally, the firm’s description that it had handled cases “resulting in justice” and “successfully” represented clients violated the requirement as well, the Florida Bar found, due to the fact that those terms are “inherently subjective.”

Additionally, the Florida Bar took issue with the automatic listing of the firm’s “Specialties” and posting of a former client’s unsolicited recommendation on its LinkedIn profile.

According to the complaint, the Florida Bar’s Standing Committee on Advertising affirmed the advisory opinion. At the same time, the Bar failed to provide the firm with guidance on the “objectively verifiable” requirement or what evidence would be required to verify past results and other statements.

The lawsuit states that the Florida Bar’s rules make it effectively impossible for Florida lawyers to write blog articles, publish their results on past cases or to participate in Social Media sites “without any evidence that restricting these activities serves any purpose.”