It has only been a little over a month at this point since I wrote about how Florida was a hopeless place.
Well, here we are again. The Florida Bar Board of Governors has unanimously rejected a few proposals aimed toward progress in the re-regulation of the practice of law in the last week or so. Now, I want to be realistic in both my outrage and disappointment.
So, let’s talk first about the much less surprising piece of this development because it is just Florida rejecting something that, to date, most every state has rejected and only two states and the District of Columbia have been willing to consider or enact.
The Florida Bar Board of Governors rejected a proposal that had been submitted to it by a Special Committee to Improve the Delivery of Legal Services established by the Florida Supreme Court. That proposal would have involved amending Florida’s ethics rules to allow some nonlawyer ownership in law firms as long as the majority ownership interest was still in the hands of lawyers and to allow fee-sharing to occur between lawyers and nonlawyers. The proposal involved the notion of giving these kinds of items a try in a regulatory sandbox approach rather than simply throwing doors open wide.
Given that, to date, only Arizona and Utah have joined D.C. in allowing for people without law licenses to have an ownership interest in a law firm, the fact that the Florida Bar rejected this proposal is really not surprising. It is maybe a little bit surprising that the vote was 46-0 and 45-0, but ….
Now, the other aspect of the Special Committee’s suggestions that was rejected at the same time really is a cause for outrage and disappointment. These suggested revisions targeted Florida’s regime for regulating lawyer advertising.
Florida has long been an embarrassment to the profession when it comes to its approach to restricting advertising by lawyers. And while reasonable lawyers can disagree about whether revisions to ownership regimes and fee-sharing are an inherently good direction for the profession to pursue, the notion that Florida can continue to insist that it’s approach to lawyer advertising makes sense is beyond the pale at this point.
The Special Committee had suggested revisions to the Florida advertising rules that were intended to streamline the rules — in large part this was proposed to be done by moving some of the more detailed rules into comments — if this sounds familiar to readers of this blog that would be because it should be. This kind of revision was recently enacted in Tennessee, and the Tennessee endeavor was inspired by the same things that inspired the proposal of the Florida Special Committee, the work of APRL in encouraging these kinds of revisions and the adoption by the ABA of more streamline advertising rules. The Florida Special Committee also proposed ending Florida’s mandatory review process of lawyer advertisements that offer more than just basic information or are not law firm websites.
The notion that a prominent member of the Florida Bar Board of Governors could explain opposition to such proposals by saying:
“While well intentioned, I think both of them are ahead of their time,” Sellers said.
That is the stuff of farce if not outright gaslighting. Ahead of their time? I guess if Florida wants to insist that it is the 1990s down there in terms of the refusal to streamline, and I guess the 1970s down there in refusing to stop imposing a prior restraint on constitutional speech, then, sure.
The notion that the vote on that was also unanimous (43-0) is extremely unsettling.
To be clear about what we are talking about when we talk about Florida’s advertising rules, these are rules that still, in 2021, have an entire separate rule prohibiting certain forms of advertisements as being somehow “unduly manipulative” because they contain the image or a voice of a celebrity. This is a state that has rule that also makes it improper to advertise using “an image, sound, video or dramatization in a manner that is designed to solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client.” This is a state that still has an entire separate rule that purports to tell lawyers what content for their advertisement will be “presumptively valid content.”
All of that is bad enough, but the notion that Florida still imposes a pre-publication review requirement for commercial speech — a concept that is anathema to any reasonable understanding of the First Amendment — and that its governing body of lawyers just reaffirmed unanimously that this should continue is just … sad.