Coming to praise rather than to bury (Part 2 of 2)

Yesterday, I offered a positive review of a recent ethics opinion from the New York City Bar.  Today, I want to talk through this Order on the Merits striking down Florida’s restriction in its ethics rules on the ability of lawyers to refer to themselves as a specialist in the absence of a board certification from Florida or an ABA approved third-party certification entity.  I said yesterday that praising a development on legal ethics out of Florida would be a change of pace, but that’s a bit misleading as I’m really praising a federal judge for reining in Florida bar regulators and that has been a more common event recently.

Before actually delving into the Florida ruling, I’d like to offer a little background that helps explain why I am so interested in this development.  For pretty much as long as I have been licensed to practice law (17+ years now), Tennessee’s ethics rules on lawyer advertising have included provisions that significantly limit a lawyer’s ability to say that s/he is a specialist or that s/he specializes in a particular area or field of the law.

The current version of our rule, RPC 7.4, articulates this restriction as follows:

(b) Except as permitted by paragraphs (c) and (d), a lawyer shall not state that the lawyer is a specialist, specializes, or is certified or recognized as a specialist in a particular field of law.

(c)  A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation.

(d) A lawyer who has been certified as a specialist in a field of law by an organization accredited by the American Bar Association’s House of Delegates, and who has registered such certification with the Tennessee Commission on Continuing Legal Education, may state that the lawyer “is certified as a specialist in [field of law] by [accredited organization.]”

Up until January 1, 2015, (d) of our rule read quite differently, referencing the need to have been certified as a specialist by the Tennessee Commission on Continuing Legal Education and Specialization instead of directly pointing to the ABA.  As a result of a petition filed late in 2013 by the Commission the rule was changed because the Commission explained that it didn’t and wasn’t qualified to figure out how to certify anyone other than by simply relying upon whether the ABA had accredited a certifying organization and the “and Specialization” was dropped from the name of the Commission as part of it admitting that really wasn’t doing that part of its job.  I suspect there are likely still quite a few lawyers in Tennessee that are not aware of the change that resulted from this Tennessee Supreme Court order.

Florida’s Rule 7-14(a)(4) goes a bit farther than Tennessee’s as it imposes restrictions not only on claims of being a “specialist” but explicitly to claims of being an “expert” as well, treating such statements as “potentially misleading” and prohibited unless:

(A) the lawyer has been certified under the Florida Certification Plan… and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules.  A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification.  All such advertisements must include the area of certification and the name of the certifying organization; or

(C) the lawyer has been certified by another state bar of the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan … and the advertisement includes the area of certification and the name of the certifying organization.

A Florida personal-injury law firm, Searcy Denney Scarola Barnhart & Shipley PA, and each of its five-named partners individually, filed suit in the U.S. District Court for the Northern District of Florida challenging this restriction as unconstitutional.

On September 30, 2015, Judge Hinkle entered an order enjoining the Florida Bar from “enforcing Rule 7-14(a)(4), to prohibit the plaintiffs from making truthful statements on a website, blog, or social medium about their specialty or expertise.”  The opinion is succinct but very well done.  (NB: it also contains very good analysis of another challenged provision that should eventually fall but for which Searcy Denney’s claim was unripe – Florida’s rule banning statements in advertisements that are not “objectively verifiable.”)

The Court quickly states the crux of the problem with the rule’s application to the plaintiff law firm and its lawyers:

The application of this rule is clear: Searcy Denney cannot say 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.  Nor can any individual attorney claim to specialize or have expertise in mass-tort or unsafe-product cases, even if the attorney handles only cases of that kind, and even if the attorney has successfully handled many such cases.

The Court then works through an overview of U.S. Supreme Court and federal circuit decisions readily demonstrating that the three-pronged Central Hudson test applies to determine the constitutionality of any restrictions by a state on lawyer advertising.  Most importantly, for purposes of the issue before the Court, the second and third prongs of Central Hudson require that the restriction on speech must “directly advance[] the asserted government interest” and that the restriction on speech not be “more extensive than is necessary to serve that interest.”  Judge  Hinkle then recognizes that generally there has to be some “tangible evidence” offered to show that “the commercial speech in question is misleading and harmful to consumers” and that, as to the “fit” required between the ends and the means, it is a relevant consideration for the Court whether there are multiple, obvious alternatives that would be less burdensome than the challenged regulation.

Judge Hinkle then makes light work of the Florida Bar’s arguments in support of its rule.  The argument that a consumer “will be misled into believing that an attorney who ‘specializes’ or has ‘expertise’ in an area is board certified” gets brushed aside based on the lack of any evidence to support the assertion and the fact that a disclaimer would be a much narrower way to address the issue (as would educating people about what board certification means).  The Florida Bar’s second argument is rightly recognized by the Court as being a straw man of the “we have to be able to have some standards” variety.

The Court stresses that the Florida Bar can still prohibit untrue or misleading claims.  Thus, if a lawyer or law firm claims to have expertise in an area they do not or to specialize in something they do not, then the Florida Bar could still pursue them for discipline under other ethics rules.  But, as should be clear just in reading that it is within a collection of provisions entitled “Potentially Misleading Advertisements,” that is not the limit of this rule at all and, instead, the Florida Bar’s rule prohibits truthful speech.  A point easily underscored by reminding that there are many narrow fields where no certification is offered and the fact that law firms (unlike lawyers) cannot be board certified in Florida at all.

And, what is most praiseworthy, is that near the end of the Order, Judge Hinkle cites to Peel v. Attorney Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91,, 105 (1990), which should have been understood a quarter of a century ago by all states, including mine, that these kinds of restrictions on truthful speech cannot stand when supported, as they are, only on the basis of a “paternalistic assumption” that consumers of legal services “would automatically mistake a claim of specialization for a claim of formal recognition by the State.”

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