The board also discussed a recent ruling from the 11th U.S. Circuit Court of Appeals that overturned the Bar rejection of a lawyer’s ad, but upheld the underlying rule the Bar was seeking to enforce. The Bar had found the lawyer referring to his Martindale-Hubbell rating, without an explanation of how that rating was awarded, was self-laudatory. Mason v. Florida Bar, case no. 99-2138. (See story in the May 15 Bar News.) Board members disagreed on the impact of the ruling. “I view this case as a shot across the bow,” said board member Ian Comisky. “If we’re not real careful, we’re going to lose the advertising battle and war.” But board member Gary Leppla said he thinks the ruling is limited specifically to the facts of the case, noting, “Right now is not a time to say we have a major problem.” Board member Mike Glazer agreed, but said the board still needs to review ad appeals and other issues carefully. “We need to be focusing on really bad ads and not allow bad ads to make bad law,” he said. Bar to take a harder line toward lawyer ad violations Associate Editor The Bar Board of Governors is looking to take a stronger stance against lawyers who broadcast ads that are later found to be in violation of Bar rules. Following a review of several advertising appeals at its June 2 meeting in Naples, the board approved a motion from board member David Bianchi to initiate grievance cases against lawyers whose ads were found to violate Bar rules. Bianchi accepted an amendment from board member William Kalish that the grievance investigations should be opened against lawyers who repeatedly violate the rules. Bianchi expressed frustration that the ad appeals usually take several months, during which time the ad can be run on television or radio, or appear in print media. Frequently by the time the appeal is decided, the lawyer has completed running the ad, and has another one on the air and is again beginning the appeal process. Bar rules, to avoid constitutional prior restraint problems, require ads be submitted for review no later than concurrently with publication or broadcasting. However, lawyers who want an opinion before running an ad may ask for and get one. Bianchi said without a serious threat of prosecution, the board was wasting its time handling ad appeals. “All of the [television] runs have already been made and they’re already on the next batch of ads,” he said as the board considered several ads from one firm. Another board member noted that many firms run an ad again after a year or two and the board’s actions do prevent recycling of ads with violations. On other matters, the board approved a proposed advertising advisory opinion that says a firm sending a newsletter to prospective clients only has to file the first edition with the Bar, as long as promotional information about the firm does not change in subsequent issues. The board reviewed several ad appeals including two involving proposed TV commercials from a law firm, which has not aired the ads, pending the board’s action. Both issues involved Rule 4-7.5(b) which provides that “visual images appearing in a television advertisement shall be limited to the advertising lawyer in front of a background consisting of a single solid color, a set of law books in an unadorned bookcase or the lawyer’s own office (with no other office personnel shown).” In one ad, a series of shots showed individual partners in their offices. The Standing Committee on Advertising held that violated the rule because more than one lawyer was shown in the ad. The Board Review Committee on Professional Ethics, which reviews ad appeals, agreed by a 5-3 vote. But the board reversed that finding, with members saying the rule does not preclude more than one attorney advertising the availability of his or her services. “This is a very reasonable, a very professional ad,” board member Jack Brandon said. The second issue addressed a brief shot, without a lawyer, of the exterior of the firm’s offices. The board discussed the matter extensively and first rejected a motion that the board should adopt a policy of allowing exterior shots of offices as long as the lawyer appeared in the frame. Board members then approved a motion that the rules do not allow exterior shots of law office buildings. Board members expressed concerns a lawyer could rent a small office in a large, impressive building, and then use that as a backdrop for an ad. The remainder of the ad appeals dealt with more common issues, such as whether certain language created an unjustified expectation, characterized the quality of legal services or was a testimonial. In various actions, the board: Agreed with the two committees that a lawyer who said he was proud of the legal work he had done for the elderly and he believed it had led to better care created an unjustified expectation. Split on two findings by the standing committee and the BRCPE over similar language in two ads where a lawyer said he found it gratifying when clients referred families and friends to his firm. The board disagreed with the findings that the language characterized the quality of legal services. But it agreed with the two committees the language was a prohibited testimonial. July 1, 2000 Gary Blankenship Associate Editor Regular News Agreed with the BRCPE (and overruled the standing committee) that a lawyer saying “I’ve been privileged to meet wonderful men and women and have worked to bring them justice” did not created unjustified expectations. But the board agreed with both committees that another part of the ad, where the lawyer characterized himself as a David battling the Goliaths of HMOs, hospitals and insurance companies was a prohibited characterization of the quality of services. Bar to take a harder line toward lawyer ad violations Agreed with the two committees that a lawyer’s statement in an ad that he guaranteed insurance companies won’t push the law firm around created an unjustified expectation.