Orlando attorney fights Florida Bar over ad

Monday, August 17, 1998

A Florida lawyer contends he should have the right to inform the public in his yellow page advertisement that he received the highest rating for attorneys by a nationally recognized law directory.

However, the Florida Bar Association says that Orlando attorney Steven Mason's 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's ad, which costs him more than $1,400 per month, states he is “'AV' Rated, the Highest Rating [in the] Martindale-Hubbell National Legal Directory.”

Mason filed a federal lawsuit last December, claiming that he is “constitutionally entitled” to publicize the rating. In Mason v. The Florida Bar, Mason alleges that the Florida Bar ethical rule is unconstitutionally vague and violates his First Amendment free-speech rights.

Last week, Mason's attorney filed a motion for summary judgment, arguing that the rule should not trump commercial-speech rights.

Under the commercial-speech doctrine, restrictions on commercial speech must pass a four-part test outlined by the high court in the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Comm. of New York. Under the so-called Central Hudson test:

  • the commercial speech must not be misleading or involve illegal activity;
  • The government's interest in regulating the speech must be substantial.
  • The speech restriction must directly and materially advance the governmental interest.
  • The restriction must not be more expansive than necessary to further the governmental interest.

In his summary judgment motion, Mason contends his speech is not misleading and the government does not have a substantial interest in regulating his truthful, nonmisleading speech.

However, Barry Richard, the attorney representing the Florida Bar, says the association's position is constitutionally sound.

“This case is very narrow factually,” he told the First Amendment Center. “Mr. Mason was not told he could not run an ad stating that he was rated 'AV.' Mr. Mason was simply told that if he characterized the 'AV' rating as the 'highest rating' given by Martindale-Hubbell that he would have to provide some additional information explaining the rating system.

“The U.S. Supreme Court has said that the solution to problems like this is to require more information, not restrict advertising,” Richard said. “The bar's concern is that characterizing the 'AV' rating as the highest rating is potentially misleading and unfair to other lawyers who are not rated or that it is potentially misleading to some members of the public who are not familiar with the nature of the rating.”

Richard, who is also rated 'AV' in Martindale-Hubbell, said that the legal directory's rating system — which asks attorneys and judges to rate attorneys in their locale as either AV, BV or CV — is “generally very accurate.”

Mason told the First Amendment Center: “A full explanation of the Martindale-Hubbell rating system would take up my entire ad. The U.S. Supreme Court has said in the 1994 case Ibanez v. Florida Dept. of Business and Professional Regulation, Board of Accountancy that overly burdensome disclaimers can likewise violate the First Amendment. This case will decide this issue.

“Where is the evidence that my ad is potentially misleading?” Mason asked. “They have conceded that Martindale-Hubbell is reputable. They have conceded I have the 'AV' rating. This rating is easily verifiable via a simple phone call. The Supreme Court in Ibanez said that the alleged harm must be 'potentially real, not purely hypothetical.'”