Florida Bar seeks to introduce survey to support rule against ‘self-laudatory’ attorney advertising

Thursday, November 12, 1998

The Florida Bar contends that a federal court should allow into evidence its recently completed survey that it says shows the value of its rule prohibiting “self-laudatory” attorney advertising.

That rule was challenged in federal court last December by Orlando attorney Steven Mason after the bar prohibited him from including in his Yellow Pages ad that he 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 ad in 1996, contending it violated an ethical rule, which states: “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; provided that this provision shall not apply to information furnished to a prospective client at that person's request or to information supplied to existing clients.”

Federal District Court Judge Kendall Sharp rejected both sides' motions for summary judgment in Mason v. Florida Bar and has set the case for a final hearing scheduled for Dec. 1.

However, late last week the state bar filed court documents, seeking to offer into evidence a nine-question public opinion survey conducted by Florida State University communications professor Jay Rayburn.

The survey concluded that “very few respondents in this sample truly know of the Martindale-Hubbell directory or understand what its ratings mean.” According to the survey, most people “said it would be helpful to know that the Directory does not rate all lawyers, and that the ratings are done in confidence by other lawyers.”

The bar asserted in earlier court papers that the rule served several substantial state interests, including “ensuring that advertising solicitations directed to the lay public do not contain information regarding attorneys which is potentially misleading.” The bar asserts that the ad will be confusing to the public because most people do not know what Martindale-Hubbell is.

The survey also concludes that there “seems to be a substantial portion of the population who are susceptible to inaccurate information that might be contained in advertisements.”

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 upheld a 30-day ban on attorney solicitation letters to personal-injury victims and their family members after an accident. A court majority cited the Florida Bar's 106-page summary of a two-year study – which included several surveys – on how lawyer advertising affects public opinion.

In the present litigation, the Florida Bar says that “due to the high cost of commissioning competent surveys, the decision was made in the case at bar to delay commissioning a survey until after the Court ruled on the cross motions for summary judgment.”

However, Mason responded in court documents that the bar's latest survey “is at least two years late” and a “1998 survey cannot be used to justify a 1996 action.” Mason's motion contended that the ad was rejected in 1996, while the survey was created in October and November 1998 “well after the discovery deadline.”