Bar seeks to ban police and judges from lawyer ads

By Gary Blankenship
Senior Editor Florida Bar News

The Bar Board of Governors has voted to seek to change its advertising rule amendments now pending before the Supreme Court to ban the use of actors portraying authority figures such as judges and police officers — in lawyer and law firm advertising.

The board, at its January 27 Tallahassee meeting, agreed with the Board Review Committee on Professional Ethics to seek the changes in amendments proposed to rules 4-7.3 and 4-7.5. The board also waived second reading so the changes could immediately be filed with the court and considered at the March 7 oral arguments on the advertising rule amendments submitted by the Bar — at the request of the court — last summer. (See Notice, page 18.)

That action also is supported by the Standing Committee on Advertising, which voted in December to recommend that lawyers no longer be allowed to use actors portraying police and other authority figures. Past actions by the Bar and advertising committee permitted the use of actors portraying police since 2006.

The board recently considered an advertising appeal where a law firm sought to use an actor portraying a judge acting as a spokesperson for the firm and endorsing the firm’s services. In that case, the board took no action and advised the firm that it would not be prosecuted for running the ad, although the firm would have to cease using the ad if it is prohibited when the advertising rule amendments pending at the court are acted on and such ads are prohibited.

The Standing Committee on Advertising had recommended that ad not be allowed.

“We want to prohibit advertising in which there are people standing there and articulating that they endorse a law firm and they are an authority figure,” said BRCPE member Carl Schwait, who presented the BRCPE’s action to the board.

He said the committee wanted to act now while the court is considering other ad rule amendments, because otherwise it might take two years to submit further changes by the time the court acts on the pending amendments and the Bar implements them.

Bar Advertising Counsel Elizabeth Tarbert said the Bar had sent copies of the proposed new amendments to everyone who had filed comments on the pending rules, members of the Special Committee on Lawyer Referral Services, several people who had appeared before the Standing Committee on Advertising on this issue, and several filers of ads using authority figures as spokespersons.

The board went into executive session to discuss issues related to the proposal and to receive legal advice from counsel Barry Richard. When the board ended the executive session, it approved a motion by Schwait on behalf of the BRCPE that Rules 4-7.3 and 4-7.5 should be amended to prohibit lawyers and law firms in ads from using actors portraying authority figures such as judges and police officers and who otherwise endorse the services of the advertising lawyer or law firm. It also prohibits real judges and police officers from appearing in such ads, although that’s also prohibited by judicial canons and by most police departments’ policies.

Rule 4-7.5 would be changed to read that an ad would be considered unduly manipulative or intrusive if it “uses an authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, to endorse or recommend the lawyer or act as a spokesperson for the lawyer.”

Tim Chinaris, an attorney who represents the referral service 411-PAIN, was highly critical of the proposed rule change. In a letter to the board sent before the meeting, he said the use of police in ads had been allowed in ads since 2005, had been affirmed several times since, and the Bar had no credible reason for changing the rule now. Chinaris was at the board meeting but did not speak.

“As recently as July 2011 the board voted to ask the Supreme Court to adopt Proposed Rule 4-7 .3(b)( 6), which would expressly allow the conduct,” Chinaris wrote in a letter to the board.

He called it unprecedented for the board to seek to change a rule amendment while it was still pending before the Supreme Court and argued the only change was criticisms of lawyer referral services, like 411-PAIN, by various state officials and by people testifying at the Bar’s Special Committee on Lawyer Referral Services.

In particular, at the special committee’s first public hearing in June, those testifying included two representatives from the Department of Financial Services, he said, adding, “Without providing particulars, they state that insurance fraud is associated with lawyer referral services and assure committee members that arrests are forthcoming. To date, no arrests have been made. . . .

“In summary, the Bar has offered no compelling reason — indeed, no reason at all — to justify the board’s adoption of the suggested change,” Chinaris wrote. “Nothing material has changed since the board filed its rule-change proposals with the Supreme Court in July 2011, including a proposed change that would expressly allow conduct that the board, in a complete about-face, now may wish to condemn. There certainly is no urgency that would require suspending the board’s and the court’s ordinary procedural processes that apply to proposed rule changes.”

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