SEARCY etal v FLORIDA BAR etal

Filing 37

ORDER ON THE MERITS re 30 , 33 , 35 . Signed by JUDGE ROBERT L HINKLE on 9/30/15. (sms)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

CHRISTIAN D. SEARCY et al.,
Plaintiffs,
v.

CASE NO. 4:13cv664-RH/CAS

THE FLORIDA BAR et al.,
Defendants.
____________________________/
ORDER ON THE MERITS
This case presents a First Amendment challenge to two Florida Bar rules
that govern attorney websites. The case is here on cross-motions for summary
judgment. Both sides agree the case should be resolved based on the summaryjudgment motions.
The first challenged rule, at least as interpreted by the Bar’s Standing
Committee on Advertising, requires any statement on an attorney’s website to be
“objectively verifiable.” The Standing Committee says a website thus cannot
include a statement such as “tort reform benefits insurers.” The rule as so
interpreted would obviously violate the First Amendment, but in this lawsuit the

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Bar renounces any such interpretation. The Bar has not, however, renounced
application of the rule to at least some truthful statements about an attorney’s past
results. Under controlling Eleventh Circuit authority, the plaintiffs’ challenge to
this rule is not yet ripe.
The second rule prohibits a law firm from saying it specializes in, or has
expertise in, a given practice area, even if the statement is true. The rule prohibits
an individual attorney from truthfully claiming to specialize or have expertise in an
area unless the attorney is board-certified in that area. And because certification is
not available for some practice areas, the rule prohibits an attorney from claiming
to specialize or have expertise in those areas. The challenge to this rule is ripe.
The rule, at least as applied to the plaintiffs’ website, is unconstitutional.
I
The plaintiff Searcy Denney Scarola Barnhart & Shipley PA is a Florida law
firm that handles personal-injury cases. The individual plaintiffs are the firm’s five
named partners. The firm has included on its website (a term used in this order to
include blogs and social-media materials), and wishes to continue to include on its
website, some statements that clearly do, and others that may, violate the
challenged rules, including, for example, a statement that tort reform benefits
insurers and a statement that Searcy Denney specializes in mass-tort and unsafe-

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product cases. As is undisputed, the firm has handled many mass-tort and unsafeproduct cases.
The defendants are The Florida Bar and, in their official capacities, four Bar
officers, including the executive director.
The plaintiffs challenge two rules that are part of the Rules Regulating The
Florida Bar (sometimes cited in this order as “Florida Bar Rules”). Rule 4-7.13
prohibits “deceptive and inherently misleading” advertisements, defines that term,
and, in Rule 4-7.13(b)(2), gives as a specific example of prohibited material
“references to past results unless such information is objectively verifiable.” Rule
4-7.14(a)(4) prohibits “a statement that a lawyer is board certified, a specialist, an
expert, or other variations of those terms,” unless the lawyer has been certified
under The Florida Bar’s certification plan, another state’s comparable plan, or
another certification plan accredited by The Florida Bar or the American Bar
Association.
The plaintiffs assert that the rules violate the First Amendment, both on their
face and as applied. They also initially asserted that Rule 4-7.13 is
unconstitutionally vague. An earlier order rejected the vagueness challenge on the
merits.

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II
The Bar has established a three-step procedure under which an attorney may
obtain an opinion on whether a statement in an advertisement or on the attorney’s
website violates the rules. The first step is review of the statement by the Bar’s
Ethics and Advertising Division. The second step is review of the Ethics and
Advertising Division’s opinion by the Bar’s Standing Committee on Advertising.
The third step is review by the Bar’s Board of Governors.
A favorable opinion at any step creates a “safe harbor”; an attorney cannot
be disciplined based on a statement said to be permissible at any step. But only the
Board of Governors can establish the Bar’s official policy. Thus an opinion of the
Ethics and Advertising Division or Standing Committee on Advertising, even
when issued as a formal part of the review process, may establish a safe harbor but
otherwise is not binding on the Bar or on the attorney.
When invoking this process, an attorney may submit discrete materials from
a website but must not submit the entire website. See Florida Bar Rule 4-7.19(d).
In accordance with these procedures, Searcy Denney submitted 13 pages from its
website (from the thousands of pages on the website as a whole), its LinkedIn
profile page (which included a client’s unsolicited, favorable comments), and
materials from the firm’s blog.

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The Bar’s Ethics and Advertising Division and the Bar’s Standing
Committee on Advertising provided rather remarkable responses, opining, for
example, that Searcy Denney could not include on its website the following
statements (deemed not to be objectively verifiable and thus to be forbidden): the
days “when we could trust big corporations . . . are over”; “Government regulation
of Corporate America’s disregard of consumer safety has been lackadaisical at
best”; and “when it comes to ‘tort reform,’ there is a single winner: the insurance
industry.” In defense of this lawsuit, the Bar has backed away from these
obviously unconstitutional positions; the Bar no longer asserts it can prohibit an
attorney from making political statements like these.
The Ethics and Advertising Division and the Standing Committee on
Advertising also said Searcy Denney could not say it has “32 years of experience
handling mass tort cases, resulting in justice for clients in a wide variety of
circumstances,” or that it was “one of the few law firms in the country to
successfully represent innocent victims of dangerous herbal supplements.” The
theory was that “justice” and “successfully” are not objectively verifiable. The Bar
has not renounced these positions.
Searcy Denney could have obtained review by the entity that has authority to
bind the Bar: the Board of Governors. But Searcy Denney did not do so. Instead,
Searcy Denney and its named partners filed this lawsuit.

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III
The first issue is the extent to which the plaintiffs’ challenge to these
provisions is ripe for adjudication despite Searcy Denney’s failure to obtain an
opinion from the Board of Governors. The law of the circuit on this issue is set out
at length in Harrell v. The Florida Bar, 608 F.3d 1241, 1261 (11th Cir. 2010). No
purpose would be served by repeating here all that was said there.
Harrell establishes that a First Amendment challenge to a Bar rule may go
forward on the merits when three things are all true. First, the attorney has made
statements, and unless prohibited from doing so will continue to make statements,
that may violate the challenged rule. Second, the attorney faces a credible threat of
disciplinary action if the attorney continues to make the statements. And third,
nothing would be gained by requiring the attorney to obtain a more-definitive
administrative interpretation of the rule, because the rule’s application is clear on
its face. Harrell, 608 F.3d at 1261-62.
The opinions of the Bar’s Ethics and Advertising Division and Standing
Committee on Advertising are enough to show that the first two conditions are
met. The critical issue, then, is the third: whether application of the challenged
rules to Searcy Denney’s statements is clear on the face of the rules. As set out
below, this condition is not met for the first challenged rule (Rule 4-7.13) but is
met for the second (Rule 4-7.14).

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IV
Rule 4-7.13, provides in relevant part:
A lawyer may not engage in deceptive or inherently
misleading advertising.
(a) Deceptive and Inherently Misleading Advertisements. An
advertisement is deceptive and inherently misleading if
it:
(1) contains a material statement that is factually or
legally inaccurate;
(2) omits information that is necessary to prevent the
information supplied from being misleading; or
(3) implies the existence of a material nonexistent fact.
(b) Examples of Deceptive and Inherently Misleading
Advertisements. Deceptive or inherently misleading
advertisements include, but are not limited to
advertisements that contain:
(1) statements or information that can reasonably be
interpreted by a prospective client as a prediction or
guaranty of success or specific results;
(2) references to past results unless such information is
objectively verifiable, subject to rule 4-7.14;
(3) comparisons of lawyers or statements, words or
phrases that characterize a lawyer’s or law firm’s
skills, experience, reputation or record, unless such
characterization is objectively verifiable.
Florida Bar Rule 4-7.13 (emphasis added).

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On its face, the requirement that a statement be “objectively verifiable”
applies only to statements about past results, not to every statement on a website or
in other materials. And on its face, the requirement that a statement about past
results be “objectively verifiable” does not proscribe—or at least does not
necessarily proscribe—a statement that an attorney has achieved justice or
successfully represented clients. Nor does the requirement, on its face, proscribe
truthful statements about actual results obtained for clients.
The Bar has said in its official comment on the rule that statements about
past results can be misleading. And indeed they can. An astute attorney once
observed that the easiest way to get a million-dollar verdict is to have a fivemillion-dollar case and try it poorly. So an attorney’s statement that the attorney
has obtained a million-dollar verdict does not necessarily show that the attorney
handled the case well. Still, a client faced with a choice between two attorneys
might wish to know that one has obtained a million-dollar verdict in a case of the
kind at issue and the other has never even tried such a case. The solution to the
Bar’s concern is to provide potential clients more information, not less. The Bar
has fallen short of justifying a ban on truthful statements along these lines.
The difficulty for the plaintiffs in the current lawsuit, though, is that the rule
does not explicitly prohibit such a statement. Even the official comment says only
that an attorney’s claim to have “successfully” handled a case “may or may not be

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sufficiently objectively verifiable.” Florida Bar Rule 4-7.13, Comment (emphasis
added). Searcy Denney can hardly be criticized for fearing the worst, based on the
Bar’s “long and undeniable trend towards increasingly restrictive measures to
control attorney advertising,” Harrell, 608 F.3d at 1248, the many inconsistent and
sometimes indefensible positions the Bar has taken in other instances, see id. at
1255-56, and the opinions of the Bar’s Ethics and Advertising Division and
Standing Committee on Advertising in response to Searcy Denney’s inquiry in this
very case. But until the Board of Governors interprets the rule in an
unconstitutional manner, the challenge is premature. That is the clear import of
Harrell.
V
The result is different for Rule 4-7.14, which provides in relevant part:
A lawyer may not engage in potentially misleading advertising.
(a) Potentially Misleading Advertisements. Potentially
misleading advertisements include, but are not limited to:
....
(4) a statement that a lawyer is board certified, a specialist,
an expert, or other variations of those terms unless:
(A) the lawyer has been certified under the Florida
Certification Plan as set forth in chapter 6, Rules
Regulating the Florida Bar and the advertisement
includes the area of certification and that The
Florida Bar is the certifying organization;

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(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 if
the state bar program grants certification on the
basis of standards reasonably comparable to the
standards of the Florida Certification Plan set forth
in chapter 6 of these rules and the advertisement
includes the area of certification and the name of the
certifying organization.
Fla. Bar Rule 4-7.14 (emphasis added).
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 unsafeproduct cases, even if the attorney handles only cases of that kind, and even if the
attorney has successfully handled many such cases. The challenge to this rule thus
is ripe.
The controlling First Amendment standards have been set out in a series of
decisions, many specifically addressing statements by lawyers. “Lawyer
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advertising is a constitutionally protected form of commercial speech, but like any
other form of commercial speech, a state may regulate it to protect the public.”
Mason v. Fla. Bar, 208 F.3d 952, 955 (11th Cir. 2000) (citing Bates v. State Bar of
Ariz., 433 U.S. 350, 383–84 (1977)). Courts review the constitutionality of a
state’s restrictions on lawyer advertising based on the test originally adopted by the
Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service
Commission of N.Y., 447 U.S. 557, 563–66 (1980).
“Under Central Hudson, the government may freely regulate commercial
speech that concerns unlawful activity or is misleading.” Florida Bar v. Went for
It, Inc., 515 U.S. 618, 623-24 (1995). If the commercial speech concerns lawful
activity and is not misleading, the government must meet the Central Hudson test.
See id. at 624. Searcy Denney’s proposed statements are lawful and not
misleading. So the Central Hudson test applies.
Under Central Hudson, a restriction on commercial speech is valid only if
(1) the asserted governmental interest in restricting the speech is substantial; (2)
the challenged restriction directly advances the asserted governmental interest; and
(3) the restriction is not more extensive than is necessary to serve that interest.
See, e.g., Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 183
(1999); Central Hudson, 447 U.S. at 563-66.

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“Unlike rational basis review, the Central Hudson standard does not permit
us to supplant the precise interests put forward by the State with other
suppositions.” Edenfield v. Fane, 507 U.S. 761, 768 (1993). “Under Central
Hudson’s second prong, the State must demonstrate that the challenged regulation
advances the Government’s interest in a direct and material way.” Went for It, 515
U.S. at 625 (internal quotations omitted). “That burden, we have explained, ‘is not
satisfied by mere speculation or conjecture; rather, a governmental body seeking to
sustain a restriction on commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact alleviate them to a material
degree.’ ” Id. (quoting Edenfield, 507 U.S. at 767). To show that a regulation
materially advances a substantial interest, a state may present empirical data,
studies, and anecdotal evidence. See id. at 628. “Courts have generally required
the state to present tangible evidence that the commercial speech in question is
misleading and harmful to consumers before they will find that restrictions on such
speech satisfy [this] prong.” Borgner v. Brooks, 284 F.3d 1204, 1211 (11th Cir.
2002).
“The third prong of Central Hudson requires that there be an adequate ‘fit
between the legislature’s ends and the means chosen to accomplish those ends, a fit
that is not necessarily perfect, but reasonable.’ ” Harrell v. Fla. Bar, 608 F.3d
1241, 1270-71 (11th Cir. 2010) (quoting Went for It, 515 U.S. at 632). While “the

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‘least restrictive means’ test has no role in the commercial speech context, . . . the
existence of ‘numerous and obvious less-burdensome alternatives to the restriction
on commercial speech . . . is certainly a relevant consideration in determining
whether the ‘fit’ between ends and means is reasonable.’ ” Went for It, 515 U.S. at
632 (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13
(1993)).
In our case, the Bar’s position rests on two premises, neither of which
withstands analysis. First, the Bar speculates that a potential client will be misled
into believing that an attorney who “specializes” or has “expertise” in an area is
board certified. But the Bar has offered no empirical or even anecdotal evidence in
support of the assertion. And if the Bar is really concerned with this possibility,
there are narrower ways to attack the problem, including, for example, by
educating the public on what it means to be board certified, or by requiring a
disclaimer—a statement by the attorney explaining that the attorney specializes or
has expertise but is not board certified.
Second, the Bar says:
If the State were prohibited from establishing any standards as a
basis for claiming specialization or expertise, lawyers would be
able to self-certify and any lawyer could claim to be an expert or
specialist in any field. The State has a substantial interest in
enabling consumers to determine which lawyers have special
training and expertise without having to engage in a degree of
research that would be so extensive as to be impracticable for the
average consumer.
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Def.’s Mot. Summ. J., ECF No. 35, at 6-7.
The easy answer is that nobody has proposed to prevent the Bar from
establishing reasonable standards. Nobody has proposed to allow a lawyer
to “self-certify” or to claim expertise without a basis for doing so. The Bar
can prohibit untrue or misleading claims. But this is not what the Bar has
done.
Instead, the Bar prohibits even truthful claims. Searcy Denney has
expertise in mass-tort and unsafe-product cases, as well as in personal-injury
cases generally. The Bar has not denied it and could not reasonably do so.
But Rule 4-7.14 prohibits Searcy Denney from noting on its website that it
has expertise in these areas. Indeed, the Bar prohibits every lawyer in the
state from claiming expertise in mass-tort or unsafe-product cases, because
there is no board certification in these narrow fields. And the Bar prohibits
every law firm in the state from claiming expertise in personal-injury cases,
because law firms, as distinguished from individual lawyers, cannot be
board-certified.
It should be noted, too, that the Bar’s approach is unlikely to solve the
problem it posits. The Bar readily allows a lawyer to assert that the lawyer
handles only cases of a specific kind. So a lawyer can say personal-injury
cases are all the lawyer handles, or that personal-injury cases are the
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lawyer’s business. The Bar apparently believes that a potential client will
attribute a different meaning to these assertions than to the assertion that a
lawyer specializes or has expertise in personal-injury cases. But the Bar has
offered no empirical or even anecdotal support for the supposition. When
First Amendment rights are at stake, such an unsupported (and indeed
unintuitive) supposition will not do.
In sum, the Bar’s ban on truthful statements about a lawyer’s or law
firm’s specialty or expertise, at least as applied to websites, fails all three
prongs of the Central Hudson test.
This analysis is confirmed by Abramson v. Gonzales, 949 F.2d 1567 (11th
Cir. 1992). When that case was decided, Florida licensed psychologists but did not
prohibit the practice of psychology without a license. Even so, a Florida statute
prohibited unlicensed psychologists from advertising that they were
“psychologists.” The state’s theory was that the public would wrongly assume that
a “psychologist” was licensed—much as the Bar asserts here that the public will
assume a “specialist” is board-certified. The Eleventh Circuit held that the
advertising restriction violated the First Amendment. The court said that in Peel v.
Attorney Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91, 110 (1990),
“[a] majority of the justices rejected the ‘paternalistic assumption’ that the ‘public
would automatically mistake a claim of specialization for a claim of formal

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recognition by the State.’ ” Id. at 1576 (quoting Peel, 496 U.S. at 105). The
Eleventh Circuit also said that the “state’s own definition of a specialist—or here a
psychologist—cannot bar those who truthfully hold themselves out as specialists or
psychologists from doing so.” Id. Here, as in Abramson, the state cannot prevent a
person from advertising a lawful specialty, even if the state’s own definition of the
specialty is different.
VI
For these reasons,
IT IS ORDERED:
1. The plaintiffs’ summary-judgment motion, as amended, ECF Nos. 30 &
33, is granted in part and denied in part.
2. The defendants’ summary-judgment motion, ECF No. 35, is denied.
3. The defendants John F. Harkness, Elizabeth Tarbert, James N. Watson,
Jr., and Adria E. Quintela, in their official capacities as employees of the Florida
Bar, are enjoined from enforcing Rules Regulating The Florida Bar, Rule 47.14(a)(4), to prohibit the plaintiffs from making truthful statements on a website,
blog, or social medium about their specialty or expertise. This injunction binds
these defendants and their officers, agents, servants, employees, and attorneys—
and others in active concert or participation with any of them—who receive actual
notice of this injunction by personal service or otherwise.

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4. The plaintiffs’ other claims are dismissed without prejudice for lack of
jurisdiction because the claims are not ripe.
5. The clerk must enter judgment and close the file.
6. The court retains jurisdiction to award costs and attorney’s fees on a
timely motion and to enforce the injunction.
SO ORDERED on September 30, 2015.
s/Robert L. Hinkle
United States District Judge

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