Lawyer should explain rating in ad, federal judge finds

Monday, December 21, 1998

Requiring an attorney to include a disclaimer in an advertisement does not
infringe upon First Amendment rights, a federal judge has ruled.


Orlando, Fla., attorney Steven Mason purchased a Yellow Page ad that read:
“AV rated, the Highest Rating [in the] Martindale-Hubbell National Legal
Directory.”


Mason did receive an AV rating, which is the highest rating given by the
directory. However, the Florida Bar rejected 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 state bar last December, contending that the Florida Bar in
rejecting his ad violated his First Amendment free-speech rights.


However, U.S. District Judge G. Kendall Sharp disagreed in his opinion issued
Dec.15. In Mason v. The Florida Bar, Sharp wrote that “the Florida Bar's
disclaimer requirement does not infringe upon Mr. Mason's constitutional
rights.”


The court first noted that Mason's ad constituted commercial speech protected
by the First Amendment. The court said that a regulation on commercial speech
passes First Amendment review if: (1) the state has a substantial government
interest; (2) the regulation advances the substantial interest; and (3) the
regulation is narrowly drawn.


Sharp found that the state bar had three substantial interests:



  • Ensuring that lawyer ads are not misleading.
  • Ensuring that the public has access to relevant information to assist in the
    selection of attorneys.
  • Ensuring that rating services use objective criteria.

Sharp determined that “the public's unfamiliarity [with Martindale-Hubbell
legal directory] makes Mr. Mason's advertisement potentially misleading.”


“Because attorneys are the principal users of Martindale-Hubbell and because
Martindale-Hubbell was created to serve the legal community, the court finds
that the general public is unfamiliar with Martindale-Hubbell and its rating
system,” Sharp wrote.


The judge also ruled that the disclaimer requirement directly advanced the
bar's interests and was narrowly drawn.


“Rather than prohibiting Mr. Mason from using the words 'the Highest Rating,'
the Bar merely asks Mr. Mason to include a single sentence in his advertisement
to explain the potentially misleading language,” the opinion said.


The court concluded: “This case is a tempest in a teapot wherein Mr. Mason
challenges the sensible requirement that if an attorney characterizes his
Martindale-Hubbell rating with the words 'the Highest Rating,' then he must
explain what that means to a public generally unfamiliar with the
Martindale-Hubbell rating system.”


Mason told the First Amendment Center: “The bar presented no evidence that my ad was potentially
misleading. This decision conflicts with the constitutional free-speech
principles of the U.S. Supreme Court and it simply fosters a bureaucracy that
enacts restriction after restriction without justification.


“When you are dealing with constitutional rights, you have to remain
optimistic. Constitutional protections never come easy,” he said.


Mason said that he “absolutely would appeal” the case to the federal appeals
court.