Americans today may feel divided, but some things still unite us. From the rocky coasts of Maine to the summits of Hawai’i, any one of us has the opportunity to see a Morgan & Morgan ad. The nationwide injury law firm has opened offices in every state, together with a strong advertising presence in TV, outdoor signage, and internet content.
Lawyer advertising, however, faces restrictions from each state bar. Attorneys who break these regulations face discipline, potentially including license suspension. The Florida Bar prohibits the use of celebrity images or voices in lawyers’ advertisements, contending that they could mislead the public. Morgan & Morgan has invested in endorsements from athletes and celebrities like Shaquille O’Neal, but it cannot run these ads in Florida without risking its right to practice in the state.
After formal requests for a policy change went nowhere, Morgan & Morgan has filed a lawsuit in the U.S. District Court for the Northern District of Florida. The suit challenges the Florida Bar’s rule as unconstitutional and asks the court to issue an injunction forbidding the Bar from enforcing it.
The Rule for Celebrities in Florida Legal Advertisements
The Florida Bar’s regulations prohibit a lawyer’s use of “unduly manipulative or intrusive advertisements.” Florida Rule of Professional Conduct 4-7.15(c) states that an ad is unduly manipulative if it “contains the voice or image of a celebrity”: someone “who is known to the target audience and whose voice or image is recognizable to the intended audience …[which can be] on a regional or local level, not just a national level.”
Although the Pennsylvania Bar forbids endorsements from celebrities or public figures, only the Florida Bar entirely bans their use or appearance. An attorney in Florida cannot use a well-known person’s “voice or image” at all, unless that person is an actual client giving a specific testimonial, or else a local announcer who reads ads routinely.
Morgan & Morgan’s Constitutional Arguments
In its complaint, Morgan & Morgan makes two constitutional arguments against the rule. Firstly, the law firm asserts that the rule violates the First Amendment. Commercial speech has less constitutional protection than other types, but honest advertisements about lawful goods and services do have First Amendment rights. Under what is known as the Central Hudson test, the state can only restrict such commercial speech if the restriction “directly advances” a “substantial” government interest; that restriction cannot be “more extensive than is necessary.”
Morgan & Morgan argues that “the state has no legitimate interest in regulating ‘manipulative’ advertising” at all. The firm cites the U.S. Supreme Court in Edenfield v. Fane (1993), which struck down a state rule barring Florida CPAs from directly soliciting potential clients. In that case, the Court said that the state “must demonstrate that the harms it recites are real, and that its restriction [of commercial speech] will in fact alleviate them to a material degree.” According to Morgan & Morgan, the Florida Bar has presented no evidence that people seeking lawyers are likely “to make decisions on the basis of a celebrity lending credibility,” as asserted. If anything (says the firm) available evidence shows that celebrity endorsements have no effect.
Morgan & Morgan’s second claim is that Florida’s rule cannot be enforced because it is unconstitutionally vague and overbroad. The Bar’s decisions on who is “recognizable to the intended audience” are, the firm says, difficult to foresee or understand. For example, it states that the Bar forbade advertisements on a particular podcast because that podcaster counted as a “celebrity” to his subscribers. Yet the Bar has permitted ads featuring former professional baseball and basketball players. Thus, according to Morgan & Morgan, “the rule provides lawyers with no standards with which to predict how [the Bar’s] discretion will be applied.”
How Will the Florida Bar Respond?
As of this writing, the Bar has not yet filed a response, so we do not know its counterarguments. According to the complaint, the Bar reviewed Morgan & Morgan’s request to suspend enforcement of the rule, although it took no action. At that time, “Gemma Torcivia, chair of the Bar’s Standing Committee on Advertising, told the committee that it is not ‘advisable to permit the use of celebrities in advertising’ because it ‘will confuse the public’ and ‘create a negative potential perception.’”
Morgan & Morgan’s complaint also cites other Bar committee reports and statements, one of which referred to “the unique and powerful characteristics of electronic media.” That was in 1989, when the internet was for hobbyists and academic use. An updated argument could easily refer to the risk of AI-generated misinformation in legal ads.
Whatever the Florida Bar may argue, the proliferation of sponsorships in streaming services and podcasts ensures that anyone in any state can see a company’s ads, whether they want to or not.
