The Florida Ruling on Attorney Advertising of Past Results:
A Legal Marketer’s Perspective


attorney advertising past resultsThe recent Florida court ruling striking the ban on attorneys being allowed to advertise past results has been perceived by many as a victory for those who claim such communications are a first amendment right.

I wouldn’t know about that. I’m not an attorney.

But I am a legal marketer and from that perspective, Florida’s ruling makes great sense – first amendment rights aside.

Part of the reason that some might disagree is because there exists a perception that somehow advertising, by definition, is fake or misleading and that its audience will thus make decisions based upon false information. When we think of advertising for law firms, we picture attorneys screaming into a camera how they are going to make sure you get that to which you’re entitled. And doggone it, they’re not even going to get paid until you do! What could be better than that?

However, the truth of the matter is that the goal of advertising is not to mislead, but to inform. For decades, attorneys were denied the opportunity to highlight why a prospective client should consider them for hire. Hence, that prospect had little to go on to make any kind of informed decision. In this light unfortunately, legal services can become commoditized.

It’s a little strange that we don’t seem to have such concerns when it comes to content about attorneys that appear in articles, in magazines, on lists of “best” lawyers, etc. Yet, oftentimes, these can be just as misleading. At least with advertising, the audience intrinsically knows that space or time has been purchased. Misleading information disguised as journalism is actually much more harmful, precisely when it is cloaked in a veil of “objectivity.”

That the claims made in ads should be regulated and monitored goes without saying. Michael P. Downey, St. Louis, MO, chair of the rules and regulations subcommittee of the Section’s Ethics & Professionalism Committee has it right when he says, “It's good that lawyers can talk about past results so clients can make better decisions” But he’s also right when he says “It (the ad) must be objectively verifiable.” And there is certainly nothing wrong with disclaimers stating that past results are not indicative of future success.

So congratulations, Florida. Great decision. Not just for first amendment reasons – but because it allows attorneys to distinguish their practice from others and thus is in the best public interests as well. Now, if only the last 5 or 6 states that don’t allow advertising on past results would jump on board the bandwagon…

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