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Lawyer ads can't air without prior okay

By ASSOCIATED PRESS
Published November 3, 2006

TALLAHASSEE - Lawyers will have to get Florida Bar approval for radio and television commercials before airing them under rules approved Thursday by the state Supreme Court.

Lawyers already must submit broadcast advertising to the Bar, but could air them at their own risk before the reviews were completed. The Bar has 15 days to complete each review to determine if ads meet content rules.

"Over half of the ads do not comply," said Bar ethics counsel Elizabeth Tarbert. "We've had attorneys who wanted a shark to be their logo."

The Supreme Court cited "sharks, wolves, crocodiles and piranhas" as inappropriate images for lawyers in a ruling that last year muzzled a pair of attorneys who used the image of a pit bullterrier in a TV ad.

The new rules expand the list of permissible images in lawyer ads. Previously they included the Florida Bar logo, a gavel and traditional renditions of Lady Justice. To those the court added the American eagle, U.S. and state flags, the Statue of Liberty, "unadorned" law books, the inside or outside of a courthouse, columns and diplomas.

The prior approval requirement applies just to broadcast ads. All types, including newspaper and Internet ads, must conform to the content rules.

A commentary accompanying the new rules says electronic ads easily can be abused, have short life spans and reach thousands of viewers or listeners in a single airing. It is difficult to enforce content regulations without a review because the Bar is unable "to patrol the airwaves."

Tarbert said the Bar received a single objection to the rule. It came from Tim Chinaris, a former Bar ethics director, now associate dean for information resources at Falkner University's law school in Montgomery, Ala.

In a telephone interview, Chinaris said prior approval may violate the First Amendment's freedom of speech and press guarantees.

In another decision, the court ruled that expert witnesses cannot offer opinions in trial testimony based on consultations with colleagues or other experts.

That amounts to hearsay testimony, the court said, ordering a new trial in a medical malpractice case from Okaloosa County.

"It impermissibly permits the testifying experts to bolster their opinions and creates the danger that (they) will serve as conduits for the opinions of others who are not subject to cross-examination," Justice Barbara Pariente wrote for the 5-2 majority.

The decision reversed rulings by a trial judge and the 1st District Court of Appeal in a lawsuit Beth and Anthony Linn filed against Dr. Basil Fossum, a physician in Niceville, claiming he failed to diagnose an injury the woman suffered.

A jury ruled for Fossum. The high court, though, decided the trial judge erred by letting Fossum's expert witness, Dr. Dana Weaver-Osterholtz, testify that his "watch and wait" approach complied with the prevailing professional standard of care based on her "curbside consult" with other urologists.

Pariente wrote there was no way for the trial court to determine whether the urologists Weaver-Osterholtz consulted would themselves qualify as experts or knew all the pertinent facts and records.

[Last modified November 3, 2006, 00:10:15]