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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2084" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2015/10/Lightbulb-expertise-300x200.jpg" alt="Idea" width="300" height="200">A Florida Bar rule blocking a personal injury law firm from stating that it specializes in mass-tort cases is unconstitutional as applied,&nbsp;a Florida federal district court recently held.&nbsp;&nbsp;The court&nbsp;enjoined the Florida Bar from enforcing its&nbsp;<a href="https://www-media.floridabar.org/uploads/2019/09/Ch-4-from-2020_03-SEP-RRTFB-9-19-19-3.pdf">Rule 4-7.14(a)(4)</a>, which&nbsp;prohibits statements &ldquo;that a lawyer is ... a specialist, an expert, or other variations of those terms,&rdquo; unless the lawyer has been certified under the Florida Bar&rsquo;s certification plan or another approved plan.
The Florida Bar is&nbsp;perceived by many as one of the toughest jurisdictions in the U.S. when it comes to enforcing lawyer advertising rules.&nbsp; The Florida firm sued the bar and some of its officers after&nbsp;sample pages from the firm&rsquo;s&nbsp;website, blogs and LinkedIn profile flunked the&nbsp;bar&rsquo;s pre-approval process, which can create a &ldquo;safe harbor&rdquo;&nbsp;for such advertising.
Unconstitutional as applied
The court said that as applied, Rule 4-7.14(a)(4) of the Rules Regulating the Florida Bar would unconstitutionally prohibit the firm from saying &ldquo;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.&rdquo;&nbsp; The court also said the rule would improperly block individual lawyers of the firm from saying they &ldquo;specialized&rdquo; or had &ldquo;expertise&rdquo; in those kinds of cases even if they handled only cases of that kind, and even if the lawyer had successfully handled many such cases.
Florida&rsquo;s rule is broader than the&nbsp;ABA&rsquo;s <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_4_communication_of_fields_of_practice_specialization.html">Model Rule 7.4(d),</a> which bars only stating or implying&nbsp;&ldquo;that a lawyer is certified as a specialist in a particular field of law,&rdquo; unless the lawyer has the requisite state-sponsored certification.&nbsp; Other state ethics rules, however, are more like the Florida bar rule.&nbsp; In Ohio, for example, <a href="http://www.supremecourt.ohio.gov/LegalResources/Rules/ProfConduct/profConductRules.pdf">Rule 7.4(e)</a> proscribes stating or implying that a lawyer &ldquo;is a specialist in a particular field of law&rdquo; without going through the state specialty-certification process.
Central Hudson test
The Florida rule was found unconstitutional under all three prongs of the U.S. Supreme Court&rsquo;s 1980 test for reviewing state restrictions on lawyer advertising, as set out in<a href="https://supreme.justia.com/cases/federal/us/447/557/"> Central Hudson Gas &amp; Electric v. Public Service Commission</a>.&nbsp; Under Central Hudson, a restriction on commercial speech is valid only if:
<ul>
<li>the asserted government interest in restricting the speech is substantial;</li>
<li>the challenged restriction directly advances the asserted governmental interest; and</li>
<li>the restriction is not more extensive than necessary to serve that interest.</li>
</ul>
The Florida rule failed the test in two ways, the district court held.&nbsp; First, the bar failed to offer any &ldquo;empirical or even anecdotal evidence&rdquo; to support its assertion that a potential client would be misled into believing that a lawyer who claimed to &ldquo;specialize&rdquo; in an area was indeed board certified.&nbsp; Such evidence is required to satisfy the burden of demonstrating that the challenged regulation directly advances the government&rsquo;s interest.&nbsp; Instead, the court held, the bar offered only speculation that clients would be misled.
Second, the court held that the restriction was overbroad, because &ldquo;the Bar prohibits even truthful claims.&rdquo;&nbsp; The bar asserted that if it were prohibited from establishing standards as a basis for claiming expertise, &ldquo;lawyers would be able to self-certify and any lawyer could claim to be an expert or specialist in any field.&rdquo;&nbsp; The court said that the plaintiff law firm in fact had undeniable &ldquo;expertise&rdquo; mass-tort and unsafe-product cases, but the rule prohibited it from making that true claim because there is no board certification in those narrow fields, and law firms &mdash; as opposed to individual lawyers &mdash; cannot be board-certified.
In sum, the court held, &ldquo;the Bar&rsquo;s ban on truthful statements about a lawyer&rsquo;s or law firm&rsquo;s specialty or expertise, at least as applied to websites [including blogs and social media sites], fails all tree prongs of the Central Hudson test.&rdquo;
Implications for the future?
States have a considerable investment in certification programs that aim to credential lawyers in specialty areas.&nbsp; Given that many also have ethics rules similar to the one found unconstitutional in Searcy, will we see a spate of constitutional&nbsp;challenges to those rules?&nbsp; It is possible, but not likely.&nbsp; According to the plaintiff&rsquo;s lawyer in Searcy, who <a href="http://www.bna.com/florida-rule-restricting-n57982059211/">commented for Bloomberg/BNA </a>earlier this month, Florida stands out in the &ldquo;seriousness of its enforcement of advertising rules, which makes it more likely that a lawyer will challenge a rule.&rdquo;
But counting on flying under the ethics radar is no way to run a law business.&nbsp; So the right choice for now is to know your jurisdiction&rsquo;s rule on claiming &ldquo;expertise&rdquo; and to&nbsp;comply with it &mdash; or to challenge its constitutionality.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Rule limiting lawyer claims of “expertise” is unconstitutional, says Florida district court