By ANJALI FLUKER
Orlando Business Journal

A federal lawsuit filed this month against the Florida Bar claims that state rules governing attorney advertisements are arbitrary and unfair.

Jacksonville attorney William Harrell Jr., his firm Harrell & Harrell PA and Washington, D.C.-based Public Citizen Inc. filed the suit Jan. 7, after the Florida Bar restricted the law firm from using a previously approved slogan in its advertising.

The federal suit, filed in the Middle District of Florida in Jacksonville, claims that attorney advertising is a form of protected speech. It also argues that the Florida Bar's restrictions violate the U.S. Constitution's First Amendment free-speech protections and the 14th Amendment, which protects legal business activities.

Harrell and the other defendants are seeking a court order forbidding the enforcement of these rules.

Wanted: Clear, enforced rules

The crux of the complaint rests on the Florida Bar's 2002 decision to change Harrell's proposed slogan from "Don't settle for anything less" to "Don't settle for less than you deserve." Harrell then proceeded to use the revised phrase - as approved by the Florida Bar - in television, radio, billboard, print and Internet ads.

But last September, when Harrell submitted a new ad campaign for approval, the Florida Bar denied it, in part because his previously approved phrase "improperly characterizes the quality of the services being offered," the complaint says.

That decision left Harrell & Harrell in a dilemma, since it didn't have a newly approved ad campaign and had to pull all the earlier ads because they included the phrase that was found objectionable, the complaint says.

Public Citizen, a Washington, D.C.-based consumer-advocacy group founded by Ralph Nader in 1971, joined Harrell & Harrell in the case, saying the rules injure Florida consumers by preventing them from receiving truthful, non-misleading information about legal services and legal rights, the complaint says.

Attorney Nathan Carter says this case is a perfect example of the subjectivity used by the Florida Bar on governing this area.

In fact, the lawyer, a partner with the Orlando office of Colling Gilbert Wright & Carter, says he believes the complaint has plenty of merit: The Florida Bar itself approved the slogan in 2002, and Harrell took the approval verbatim, investing hundreds of thousands of dollars into instilling that phrase into his marketing campaign.

"That's what a lot of us who advertise have a problem with," he says. "You don't know what's going to get approved one day versus what's going to get approved the next day.

"We all want some kind of rules on advertising, but we want them to be clear and enforced."

Balancing act

Meanwhile, the Florida Bar, which has yet to file a response to the complaint, issued a prepared statement saying it "supports the most restrictive limitations on lawyer advertising consistent with constitutional requirements so as to better protect the public."

As for the outcome of the case, lawyer Rulon Munns believes the Florida Bar's governing board is being asked to balance the rights of attorneys with the rights of the public, and the association likely will prevail. "Case law has shown, for the most part, that the courts give the Bar that right," says the managing partner of Bogin Munns & Munns. "I think Harrell's got an uphill battle on this one."

Even so, Munns believes the lawsuit was a good idea. "It brings the issue up again and clarifies the boundaries," he says. "Probably about half of the (Florida attorneys) are pulling for Harrell, hoping for him to open the door a little wider, while the other half hope the Bar stands its ground."

The case is Harrell et al. v. The Florida Bar et al.