Federal judge rejects Florida Bar Association’s survey evidence

Thursday, November 19, 1998

A federal judge in Florida has rejected the state bar's efforts to enter into
evidence a survey supporting the bar's rationale for a rule prohibiting
“self-laudatory” attorney advertising.


Orlando attorney Steven Mason sued the Florida Bar Association last December
after bar officials rejected his Yellow Page ad that said Mason had received the
highest rating for attorneys from a nationally recognized law directory.


Mason's ad stated: “AV Rated, the Highest Rating [in the] Martindale-Hubbell
National Legal Directory.” Mason did receive an AV rating, the legal directory's
highest.


However, the state bar rejected the advertisement, saying it violated an
ethical rule, which provides that: “A lawyer shall not make statements that are
merely self-laudatory or statements describing or characterizing the quality of
the lawyer's services in advertising or written communications.”


Earlier this month, the state bar sought to introduce into evidence before
the final hearing in the case, scheduled for Dec. 1, a survey conducted by a
Florida State University communications professor.


The survey concluded that most people do not know what Martindale-Hubbell is, nor do they understand its rating system. According to the survey, most people
also do not know that many attorneys are not rated by the legal directory.


In court papers, the bar asserted that the survey shows the bar was concerned
with protecting people from potentially misleading ads. Mason responded that his
ad was truthful and non-misleading.


The bar's motion to offer the survey into evidence provides: “The United
States Supreme Court recognized in Florida Bar v. Went For It, Inc.
that surveys constitute useful evidence in determining whether a state has a
substantial interest in regulating particular aspects of attorney
advertising.”


In the 1995 Went For It decision, the U.S. Supreme Court relied on a
106-page summary of the Florida Bar — which contained several studies — to
uphold a 30-day ban on attorney solicitation letters to personal-injury victims
and their families after an accident.


Mason responded in court documents that the bar's latest survey was filed two
years too late and that a “1998 survey cannot be used to justify a 1996 action.”
The ad was rejected in November 1996, and the survey was created in October and
November of 1998.


Sharp issued no opinion, but wrote “denied as untimely” on the state bar's
motion to introduce the survey into evidence.


Mason told the First Amendment Center: “There was a major distinction between the survey attempted to
be introduced in this case and the survey introduced in the Florida Bar v.
Went For It
case. The surveys in the Went For It case were conducted
before the rule was adopted. The Florida Bar in this case is trying to justify
something after the fact with this self-serving survey.


“This was simply another example of unchecked government arrogance,” Mason
said. “When the bar passed these restrictions on attorney advertising, they
never expected someone to challenge the rules.”


However, Barry Richard, attorney for the Florida Bar who successfully
prevailed in the Went For It case before the U.S. Supreme Court, says
that “the issue may resurface.”


“If the judge does not want to hear any evidence, then there is no reason to
have a hearing,” Richard told the First Amendment Center. “Both
Mason and myself thought that the case was subject to resolution without the
necessity of a hearing. Our position is that if the judge does not want to hear
any evidence, such as the survey, then why have a hearing?”


In another court document Richard writes: “This case presents the court with
a significant question of constitutional law. The court should have available to
it all reasonable evidence that might be useful in reaching a resolution.”


Richard said that the two sides “are not arguing over much in this case.”


“We never told Mason that he could not say he was AV-rated,” Richard said.
“We merely told him that if he wanted to say he was AV-rated he could not
qualify that by saying it was the highest rating unless he provided a disclaimer
that not all attorneys are rated by the service.”


Mason said he was “optimistic” about his chances in the case. “I should win
this case, because the Florida Bar is flat-out wrong. They should just bite the
bullet and admit it,” he said.