Lawyer prevails in dispute with Florida Bar over Yellow Page ad

Friday, April 14, 2000

The Florida Bar violated the commercial-speech rights of an Orlando attorney when it required him to include a disclaimer about the rating he received from a prominent legal directory in his Yellow Page ad, a federal appeals court panel has ruled.

Attorney Steven Mason purchased an ad in July 1996 that read: “AV rated, the Highest Rating [in the] Martindale-Hubbell National Legal Directory.”

Mason had received an AV rating, which is the highest rating given by the directory. However, the Florida Bar told Mason he could not run the ad, saying it violated an ethical rule prohibiting “self-laudatory” advertising.

The bar insisted Mason include a disclaimer in his ad that Martindale-Hubbell does not rate all lawyers and that the ratings are exclusively based upon information from confidential sources.

Mason sued the Florida Bar in December 1997, contending that the association had violated his First Amendment free-speech rights by rejecting his ad.

In December 1998, U.S. District Judge G. Kendall Sharp sided with the Florida Bar, ruling that the “disclaimer requirement does not infringe upon Mr. Mason's constitutional rights.”

A three-judge panel of the 11th U.S. Circuit Court of Appeals reversed Sharp's decision in its April 6 ruling in Mason v. Florida Bar.

“Commercial speech, expression inextricably related to the economic interests of the speaker and the audience, is undeniably entitled to substantial protection under the First and Fourteenth Amendments,” the 11th Circuit wrote.

The appeals panel examined the constitutionality of the rule under the test established in the U.S. Supreme Court's 1980 decision Central Hudson Gas & Electric Corp. v. Public Service Comm'n.

Under the Central Hudson test, a regulation that impacts on truthful and nonmisleading commercial speech is constitutional if:

  • The government has a substantial interest in its regulation.
  • The regulation directly and materially advances the government's substantial interest.
  • The restriction is no more extensive than necessary to serve the governmental interest.

The appeals panel noted that “even if the district court properly inferred from the Introduction to Martindale-Hubbell that the general public is unfamiliar with the ratings system, this fact alone does not justify imposition of a disclaimer requirement on Mason's truthful advertisement.”

The appeals panel pointed out that the Florida Bar “presented no studies, nor empirical evidence of any sort to suggest that Mason's statement would mislead the unsophisticated public.”

“The Bar has the burden in this case of producing concrete evidence that Mason's use of the words 'AV Rated, the Highest Rating' threatened to mislead the public,” the court wrote.

The Florida Bar argued that its restriction on Mason's speech should be upheld because it required Mason only to add a disclaimer to his ad explaining the Martindale-Hubbell rating system.

The appeals panel also rejected this argument, writing: “Even partial restrictions on commercial speech must be supported by a showing of some identifiable harm.”

Barry Richard, attorney for the Florida Bar, said his client had not yet decided whether to appeal. “This issue is one that the U.S. Supreme Court has never directly decided,” he said. “I admit that this case was at the edge of the envelope.”

“I feel very much vindicated,” Mason said.

“Tenacity is a virtue,” he said. “It is an admirable quality for an attorney, or for anyone for that matter. You have to stand up for what you believe in. Too many people do not.”