Legal Beat

Florida Bar Can Force Attorney To Include Disclaimer in Yellow Pages Ad, Court Rules

David L. Hudson, Jr.

Requiring an attorney to include a disclaimer in a Yellow Pages advertisement does not infringe on his First Amendment rights, a federal district court ruled in Mason v. Florida Bar.

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

The claim was true but the Florida Bar rejected the ad, saying it violated an ethical rule prohibiting "self-laudatory" advertising.

Furthermore, the bar insisted that Mason include a disclaimer in his ad stating that Martindale-Hubbell does not rate all lawyers and that the ratings are based exclusively on information from confidential sources.

Mason sued in December 1997, contending that the Florida Bar violated his First Amendment rights when it rejected his ad.

However, federal district court Judge G. Kendall Sharp disagreed in his opinion of Dec. 15, 1998, writing that "the Florida Bar's disclaimer requirement does not infringe upon Mr. Masonšs constitutional rights."

The court acknowledged that Mason's ad constituted commercial speech protected by the First Amendment and applied the familiar Central Hudson test.

Sharp found that the state bar had three substantial interests: ensuring that (1) lawyer ads are not misleading; (2) the public has access to relevant information to assist in the selection of attorneys; and (3) rating services use objective criteria.

The judge ruled that the disclaimer requirement directly advanced the bar's interests by clarifying the AV rating, ensuring public access to relevant information, and forcing attorneys to provide additional information when a rating system is "based solely upon subjective, unverifiable criteria."

Judge Sharp also found the disclaimer requirement to be narrowly tailored. "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," he wrote. The court said this one-sentence requirement was "not unduly burdensome."

Sharp determined that "the publicšs unfamiliarity [with the 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," the judge wrote.

Sharp 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 filed a motion for reconsideration saying that, due to the small size of his ad, he must either eliminate the words "the Highest Rating" or pull the ad altogether. The district court denied the motion on Jan. 11, 1999. Mason filed a notice of appeal to the U.S. Court of Appeals for the Eleventh Circuit on Jan. 14.

Mason v. Florida Bar, Case No. 97-1493-CIV-ORL-18 (M.D. Fla. 1998).

Central Hudson Gas & Elec. Corp. v. Public Serv. Commšn, 447 U.S. 557 (1980).