A federal district court judge has ruled that the Florida Bar’s ban on the use of past results in attorney advertising in television, radio and indoor/outdoor display advertising is unconstitutional and a violation of the First Amendment.

The case — Robert Rubenstein v. The Florida Bar — involves television advertising by personal injury attorney Robert Rubenstein that included the following claim:

“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.” 

Earlier this year, the Florida Bar told Rubenstein to withdraw the ads because they violated the Bar’s ethics rules and threatened Rubenstein with disciplinary action.  He ran the ads anyway, and received notice that the Florida Bar was initiating disciplinary proceedings against him.  Rubenstein then filed suit.

In her December 8, 2014, ruling, U.S. District Court Judge Beth Bloom said that lawyer advertising qualifies for First Amendment protection as commercial speech.  She noted that there are 44 states that pose no such restrictions on attorney advertising that uses past results, and that a recent Fifth Circuit opinion in Louisiana found that a prohibition on past results attorney advertising is unconstitutional.

Judge Bloom wrote that, “The Bar has presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests its Rules were designed to promote. The burden here is the Bar’s, and it has failed to meet it.”

The judge granted Rubenstein’s motion for summary judgment and enjoined the Florida Bar from enforcing Rules 4-7.13 and 4-7-14 that prohibit reference to past results in attorney advertising in indoor and outdoor display, television and radio media:

“The Bar can regulate attorney advertising. But, so long as it has not proven that its complete ban on advertising referring to past results in the specified media supports a substantial governmental interest, it is not justified in doing so as articulated in the Guidelines.”

I’ve been writing on Florida’s byzantine attorney advertising rules since 2010.  Florida has long held the crown for some of the most convoluted and outdated advertising regulations for attorneys. So convoluted and outdated that even the Federal Trade Commission – hardly a bastion of liberal thinking – has stated that Florida’s attorney advertising regulations work against consumers getting good information about available legal services and don’t necessarily comply with the constitutional sniff test when it comes to free speech.

My position has been that the Florida Bar advertising rules not only run afoul of free commercial speech, but also have no basis in reality for how consumers choose attorneys or how attorneys must market their firms these days.

Now — hallelujah! –we have a federal court opinion that recognizes these realities.

H/t to Law Practice Advisor