Rapid Changes in Attorney Advertising Online: A Case to Watch

Law, Legal Ethics, Technology

Blogging for HessConnect:

“Even President Abraham Lincoln—who advertised his legal services as a lawyer in newspapers in the early 1850s—would run afoul of the state’s rules.”

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At least that’s what five named partners of Florida law firm Searcy Denney Scarola Barnhart & Shipley claim in a pending federal lawsuit against the Florida Bar. In Searcy v. Florida Bar, the five named partners contend that Florida attorney advertising rules regulating attorney websites violate their First Amendment free speech rights. Specifically, the plaintiffs claim that the Florida Bar’s prohibition of “garden variety” statements on attorney or law firm websites, blogs, and social media sites violate the First Amendment because they are unconstitutionally vague.

The complaint was filed after the Florida Board objected to all versions of the law firm’s website, blog and LinkedIn pages that the partners had submitted to the Florida Bar for an advisory opinion. The law firm filed suit in December 2013, after the Florida Bar determined that the firm’s websites violate the rules, due in part to statements that violate the “objectively verifiable” requirement for attorney advertising subjective descriptions of the firm’s services, including a statement by a former client that the firm “is the best law firm anyone can ask for,” another stating that the firm has a “record of significant success for thousands of clients,” and another declaring that the days “when we could trust big corporations … are over.”

The plaintiff law firm claims that the amendments to the state’s advertising rules, as amended in 2013, infringe not only on free speech rights of lawyers but also on consumers’ right to get information and ideas from attorneys, making it “effectively impossible for Florida lawyers to write blogs, to publish their results in past cases, or to participate in social media sites like LinkedIn, without evidence that restricting these activities serves any purpose.”

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In In re Amendments to the Rules Regulating the Florida Bar, the Florida Supreme Court’s approval of the amended rules at issue had, too, been met with some dissent. Justice Charles T. Canady expressed concern regarding “the impact of the application of the advertising rules to lawyer websites.” Justice Barbara J. Pariente also expressed reservations, contending that she would “exempt websites and information upon request from advertising restrictions,” because a “lawyer or law firm’s use of a website allows for the conveyance of complete and meaningful information to potential clients, unlike the shorthand versions seen in the other media.”

Florida Bar Rule 4-7.13 provides that “deceptive or inherently misleading advertisements include, but are not limited to, advertisements that contain … references to past results unless such information is objectively verifiable.”

Orlando-based attorney Steve Mason, who in 2000 won a dispute with the Florida Bar over a Yellow Pages ad that reached the 11th U.S. Circuit Court of Appeals at Atlanta is quoted in the ABA Journal as stating “If the bar is correct, then any Internet communication by an attorney falls within the scope of the rules and, more important, exposes the lawyer to punishment based upon his or her viewpoint.”

As of December, the suit has survived a Bar motion to dismiss. The law firm seeks to have the enjoined from enforcing the rules, but the suit is still pending and the attorney advertising regulations remain in effect.

Just how far these restrictions go in restraining lawyers’ speech is yet to be determined. What is clear is that state bar rules regulating attorney advertising continue to undergo rapid changes across the country- making it increasingly vital for attorneys to not only keep up-to-date with new rules, but also to ensure that their websites, blogs, and social media sites are in compliance.

Strength and weakness of the Vot­ing Rights Amend­ment Act of 2014

Law, Policy, Voting

My op-ed for The Hill’s Congress Blog:

In Shelby County v. Holder, the Supreme Court struck down Section 4(b) of the Voting Rights Act, which includes a provision mandating that specified states “preclear” any changes in election regulations with the federal government. The court upheld other provisions of the Vot­ing Rights Act intact, including Section 2, a permanent provision that prohibits racially discriminatory voting laws nationwide, but determined that Section 4(b) is unconstitutional. Section 4(b) constitutes the “coverage formula” used to apply Section 5. As enacted, Section 4 requires certain states and jurisdictions that were determined by the formula to have a history of racially unbalanced voting to preclear any changes in election regulation with the federal government, even changes as minor as moving a polling station from one building to another.

The Court in Shelby found that the provision was unconstitutional because it was based on outmoded data from voter turnout in 1964, 1968, or 1972 elections. Further, many states and vicinities subject to preclearance no longer correspond to the same incidence of racial discrimination in voting. In fact, the Census Bureau has reported that black voters voted at substantially higher rates than whites in seven of the states covered by Section 5, a rate higher than many other states that remain unaffected by Section 5.

A main qualm that many proponents of the Vot­ing Rights Amend­ment Act of 2014 have with the holding in Shelby is not its invalidation of Section 4 itself, but the consequential rendering of Section 5 as toothless.  What many liberals overlook is that Section 5 is a temporary, emergency provision passed in 1965 that was originally supposed to expire after five years. In fact, the emergency provision was enacted for the purpose of providing temporary federal receivership of state elections. However, Congress renewed the so-called emergency provision for the fourth time in 2006.

I couldn’t agree more with proponents of the bill who contend that individuals should not have to jump through hoops to register to vote and locate their proper voting locations. However, I also believe that state officials should not have to overcome significant obstacles to manage insignificant changes to elections and placing the burden of proving that voting change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color” on each jurisdiction every time the voting location changes from one building to another.

Requiring federal preclearance with the Justice Department or a federal court of any minuscule change to voting laws is essentially putting these states into the equivalent of federal receivership. The few benefits of the bill are simply not worth the far-reaching political intrusion that this version of the Voting Rights Amendment Act of 2014 would permit.

In addition to the fundamentally intrusive nature of the bill, the protections provided for are sorely inadequate. Two glaring example of essential weakness of the current version of the bill is the exceptions for voter identification laws and the increased reliance on federal litigation as the only means of enforcing the provisions.

How, then, has a bill that flagrantly infringes upon state rights and arbitrarily imposes obstacles on local election boards based on outmoded data without even touching on one of the most controversial modern voting restrictions gained such wide bipartisan support?

Perhaps the answer can be found in a nonpartisan common goal shared by legislators across America: reelection. Politicians can enact gerrymanders that, depending on the composition of the legislature, give incumbents or one party a substantial electoral advantage while more easily attributing the structure of districts on Section 5.
The Voting Rights Amendment Act of 2014 oversteps its mark by a longshot and would be a substantial step back for the freedom of voters across the county. In Shelby, Chief Justice John Roberts invited Congress to “draft another formula based on current conditions.” I strongly encourage Congress to keep drafting.

Source: http://thehill.com/blogs/congress-blog/judicial/198922-strengths-and-weakness-of-the-voting-rights-amendment-act-of