ABSTRACT Among state bars, the Florida Bar has been a pioneer in regulating advertising, especially with respect to new technology. The Bar’s efforts have been years in the making, but only until recently did constitutional considerations percolate to the forefront as the Bar faced litigation threats, and federal courts issued opinions expounding on attorneys’ First Amendment rights. Now, with the release of a proposed new code of advertising rules that coincides with the release of the American Bar Association 20/20 Commission’s proposal to amend the attorney advertising and communication model rules, questions have arisen anew as to whether the Florida Bar has drafted rules that will prove relevant and effective in vindicating the public interest while simultaneously respecting attorneys’ constitutionally protected speech rights. This Article offers an early analysis of the proposed rules and submits that, although they are an improvement over the current rules, they still retain features that attorneys are bound to attack in testing the rules’ constitutionality under the First Amendment commercial speech and void-for-vagueness doctrines. Even if the proposed rules become law and overcome legal challenge, the process by which the Bar enacted them is one that other bars may want to learn from and avoid. Bureaucratic obfuscation and paternalism have been staple features—at the cost of certainty, time, and resources. A better approach to follow is one where constitutional principles play a prominent role early on in regulators’ efforts to respond to the public policy challenges that accompany new innovations in society.
- Attorney advertising,
- First Amendment