More Confusion in the Sunshine State
Last week, I wrote about the Florida Bar’s settlement of litigation relating to client reviews and online directories. In summary, the settlement notes that the Bar is engaged in a review of its advertising rules, and that while the review is pending the Bar will treat profiles on directory sites such as Avvo
as “communication at a prospective client’s request.” As such, Florida Bar advertising rules would not apply to such profiles.
One little problem: Not two days after the Bar’s settlement of the Rothman litigation, the Florida Supreme Court issued an opinion changing Florida’s attorney advertising rules to explicitly bring websites “controlled or sponsored” by a lawyer within the ambit of the advertising rules. Previously, attorney websites had been largely considered information provided at a prospective client’s request.
Predictably enough, Florida lawyers are confused – do the rules apply to directory profiles or not? While the settlement can be read consistently with the new rules with respect to Avvo (as most items in Avvo profiles, including client reviews, are not “controlled” by a lawyer), what of directories like LinkedIn or Facebook where all of the content – and the existence of a listing in the first place – is controlled by an attorney? What of other directories that let attorneys pick and choose those reviews that appear? It certainly seems that the Bar’s intended interpretation of such profiles conflicts with the new rules adopted by the Supreme Court.
At a minimum, the disconnect between the settlement and the new rules reflects the lack of influence the Florida Bar wields with the Florida Supreme Court. In adopting the new rules, the Court declined to adopt the Bar’s suggested changes; there’s no reason to think the outcome will be different this time when the Bar presents the results of its review. It may well be that the best hope for clarity for Florida lawyers is the resumption of the Rothman litigation.
January 8th, 2010 at 3:43 pm
Well, I am glad to see you have been following this development in FL.
Let me be clear that I am not an advocate of the severe restrictions FL imposes with this latest Supreme Court ruling. It is draconian. But AVVO’s stated position when interpreting “controlled or sponsored” seems to ignore the word “sponsored” and focus exclusively on the word “controlled”.
I certainly understand the point that client and peer comments are not absoutley “controlled” by the attorney, but certainly an attorney can improve his profile comments by asking only friendly peers and clients to consider visiting AVVO and leaving comments. I other words, an unethical attorney can easily improperly manipulate his AVVO ratings – which is a form of control.
Is AVVO’s position that an attorney is NOT a “sponsor” of his own AVVO profile even though he updates his own AVVO profile? Even though he pays money to AVVO to promote his AVVO profile?
Is AVVO’s position that an attorney is NOT controlling his own AVVO profile as an advertisement when he updates it or pays money to AVVO to target very specific internet users?
While I want AVVO to work as you have set it up, any prudent attorney can immediately see that AVVO very likely runs afoul of this new Florida rule (even though this rule is draconian). And so for people like me who were considering using AVVO’s marketing services, I won’t our of fear of violating this rule.
Robb Klucik
AveMariaLawyer.com
January 8th, 2010 at 4:13 pm
Robb, thanks for the comment. There’s a distinction to be drawn between Avvo’s free profiles and the advertisements that run on Avvo. The latter is clearly subject to the ad rules; the former is not.
There’s no way to give effect to the Florida Bar’s settlement without finding that Avvo’s profiles aren’t controlled or sponsored by attorneys. And while it’s easy to take an expansive interpretation of “sponsorship” that would subsume virtually all attorney communications, the fact is that Florida’s advertising rules must be read in a limited fashion in order to be constitutional.
We are firmly convinced that there is no way that ordinary, regular and non-deceptive use of Avvo profiles – including asking clients to leave reviews – violates any constitutional interpretation of Florida’s ad rules. But I sympathize that the state has made it hard for lawyers to know what their rights are, much less stand on them.
September 22nd, 2011 at 1:31 pm
Hello,
Do you have any updates to these posts? No question it is difficult to understand what is and is not permissible. For example, I belong to a local networking group which allows for online profiles of members. There is a fee to be a member. Is having an online profile an advertisement? If so, is this community networking group supposed to be a registered Lawyer Referral Service? Thanks in advance for any information. I have also requested the latest opinions from the advertising standing committee.
Frustrated in Florida
September 29th, 2011 at 1:36 pm
Sheryl,
The Florida Bar has issued guidelines that would appear to apply to your situation. Under these guidelines, the profiles would be considered advertising but would not be required to be filed for review. You can read the guidelines here: http://www.floridabar.org/tfb/TFBLawReg.nsf/9dad7bbda218afe885257002004833c5/a502e8b302def7a5852576e3004fc685!OpenDocument