Judge rejects parties’ motions in case of lawyer suing Florida Bar

Monday, October 5, 1998

The case of a Florida attorney who is challenging the state bar association's
rules on advertising will go to a final hearing after a federal judge recently
rejected both sides' motions seeking an early legal victory.


Orlando attorney Steven Mason sued the bar last December after it prohibited
him from including in his yellow-page ad that he had received the highest rating
for attorneys by a nationally recognized law directory.


Mason's proposed ad states: “AV Rated, the Highest Rating [in the]
Martindale-Hubbell National Legal Directory.”


However, the bar argues the ad violates an ethical rule prohibiting
“self-laudatory” advertising.


The rule provides: “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.”


Mason says the rule is unconstitutional and violates his First Amendment
free-speech rights. The bar says the rule serves several substantial interests,
including “ensuring that advertising solicitations directed to the lay public do
not contain information regarding attorneys which is potentially
misleading.”


Federal District Judge Kendall Sharp rejected both parties' motions for
summary judgment last week in Mason v. The Florida Bar without issuing a
written opinion. Sharp simply stamped “Denied” on the first pages of both
parties' motions.


The judge set a final hearing date for Dec. 1.


Mason said he was “surprised” by the judge's ruling because “the facts in the
case are basically undisputed.”


“The simple fact is that the bar's rule is arbitrary and discriminatory,” he
told the First Amendment Center. “The bar does not regulate
statements on the Internet the same way as they do print ads.”


Mason points to the biography of the Florida Bar's attorney, Barry Richard,
which is accessible on law firm Greenberg Traurig's Web site. Richard's
biography states that he is “recognized as one of Florida's leading First
Amendment and Media lawyers” and “his stature among his fellow lawyers is
reflected by the fact that he is retained by The Florida Bar to represent it in
major litigation.”


Mason says this shows a “clear double standard.”


However, Richard says there is a logical reason for the distinction between
statements in print and statements made on the Internet.


“The bar made a policy decision that material on the Internet that is beyond
a home page is not subject to the rule,” he told the First Amendment Center. “Internet home pages are subject to the
same rule. However, once someone goes beyond the home page that individual is
not being solicited, they are requesting information.”


Mason responded in court filings: “If the Bar's firm can put any information
it sees fit (unrestricted advertising) in the pages that follow its 'home page,'
maybe a disclaimer should be required; i.e., 'Surfer Beware—Unrestricted
Advertising Follows — Click at your own risk.' How is it that the Bar's law firm
can advertise and pat itself on the back in this manner and Mr. Mason cannot say
'the highest rating'? This is double standard. It harkens back to the old adage,
'The big dog always eats first.'”


Richard says the Florida Bar does not have a problem with Mason's ad in
particular, but the association does want to “maintain uniform standards.”
Otherwise, according to Richard, “the bar would have to make a subjective
decision in every single case.”


“This is not a major First Amendment issue. The bar has always been sensitive
to First Amendment issues,” he said. “You have to keep in mind that the Supreme
Court has always said that requiring additional information within reason is not
the same as prohibiting speech.”


Mason responds that the bar's arguments amount to “legal nonsense.”


“What is the difference between a yellow-page ad and the Internet ads?” he
asks. “The bar's rule is arbitrary. We are now fighting over three words — 'the
highest rating.' This policy simply favors the blue-blood law firms over the
solo practitioner.”