Take a look at the new Florida State Bar rule on attorney online advertising, 4-7.6 “Computer Accessed Communications.” In particular take a look at page 10 of the PDF. The ABA Journal also ran an article this week on the rule.
Fortunately, the State Bar is holding off on the rule enactment until August 16th in order to hear additional comments after groups from the FTC to the ACLU claimed it violates First Amendment rights. If you are an attorney licensed in Florida, where were you when this was going through the comment stage? Now is the time to chime in.
Here’s a snip-it. Try to keep your mouth from dropping open when you get to the last line:
“Lawyer and law firm websites containing information about the lawyer or law firm’s services must comply with the general advertising regulations set forth in rule 4-7.2. However, a lawyer or law firm can create a portion of the website which contains information that can be provided only at the request of a prospective client, and is therefore not subject to the lawyer advertising rules under rule 4-7.1(f). In order to be considered information that is provided at the request of a prospective client, the information must be accessible only after viewing a disclaimer page and making an affirmative acceptance that the viewer has received the disclaimers required by this rule….” (emphasis added)
The rule goes on to say that only then can the prospective client be given access to information such as “past results, testimonials, or statements characterizing the quality of legal services.” Plus this registration process can’t require that prospective clients provide the attorney with any contact information.
However, and perhaps this was intended to be helpful, it allows the attorney to use “pop ups” or any other methods necessary to provide this disclaimer. That’s lovely. Because we all love pop ups, especially when they come up on every single page each time as required. Not to mention that if your prospective client uses a decent web browser they have pop ups disabled anyway so they’d just immediately leave your site rather than mess with this whole process.
The emphasis of the rule seems to be on ensuring informed consent of the prospective client before exposing them to any potentially misleading information that the attorney has posted on the site. So if you have a couple testimonials from past clients who gave you permission to post those testimonials on your “about us” page, a prospective client browsing your site couldn’t view the basic contact information for your or learn more about your services without clicking a disclaimer first. If your prospective client does not want to read your testimonials, lists of achievements or be subjected to any other forms of online car salesman-like spiel, they’ll just click the back button and go back to Google search to find another attorney online.
Why can’t the rule just simply prohibit the information on the website from being misleading? What was wrong with the slew of disclaimers that were already required on every page? I have another idea: How about having each attorney or firm register their URL with the state bar and have a team enforce the advertising rules by checking the content before URL or site approval? It could be a one-time deal and then handle continued enforcement like trust accounting audits within a state bar so that if the firm’s site is not in compliance and it is audited they have to pay a fine and revise the site.
The majority of the general public goes online to search for attorneys and legal assistance. I would argue that the majority know how to use search engines to find what they want and how to weed through ads and loads of information to find the services they need. I can’t imagine that anyone seeking an attorney online today is going to somehow be misled into thinking he or she only has one choice in legal representation. Of course they know they have options. On behalf of my online clients, let’s give them a little credit. They do not believe everything they read. They know how to research their options and to be responsible consumers. Disclaimers requiring active acceptance at every page turn is just going to push them away from an attorney in Florida and probably not help raise the public opinion about legal professionals.
If this rule or a similar one goes through, residents in Florida may be pushed even further away from finding and retaining the services of a licensed attorney in the state of Florida – whether that attorney operates a virtual law practice or is a traditional law firm with a website presence. The text of this rule requires that attorneys jump through a number of hoops to convey the availability of their services to the public online. Heck, if Robert Shapiro can go on t.v. and tell them where to get affordable online legal forms, they are going to go there before clicking through multiple pop-up disclaimers to find out the services a firm in Florida provides.
The public is already turning to other less secure methods of obtaining legal services online, mostly because companies like LegalZoom and USLegal are able to market to the public far more easily and pump millions into their national advertising both online and on t.v. I keep advocating for the legal profession to step up to the plate to acknowledge this need for greater access to justice and to recognize that the online delivery of legal services by licensed professionals is one viable solution. Rules like this one in Florida seem to be a step in the wrong direction. They also read like a desperate attempt to pull the reins in on a train that left the station several years ago. The profession and the public would both be better served by accepting new forms of online communication and finding ways to serve and protect by promoting innovation through the Internet rather than adding restrictions that just don’t make practical sense.