October 15, 2003 Gary Blankenship Senior Editor Regular News Yellow Pages ads can trip up lawyers Yellow Pages ads can trip up lawyers Senior EditorThe Florida Bar is getting the message out to lawyers who advertise in the Yellow Pages that a service intended to be a convenience to them may be a violation of advertising rules.The problem? Bar Rule 4-7.3(b) requires that a disclosure be included in the ad, and that it be at least one-fourth as big as the largest size of type used in the ad. The Yellow Pages, to be helpful, has included disclosure language on each page in the lawyer advertising section. The problem is the type typically is minuscule, nowhere near the required size for many, if not most, ads.As the comment to the rule notes, “The required disclosure would be ineffective if it appeared in an advertisement so briefly or minutely as to be overlooked or ignored. Thus the type size to be used for the disclosure is specified to ensure that the disclosure will be conspicuous.”A second problem is that even when lawyers put the disclosure language in their ads, some paraphrase the language that is required in the rule. Bar Ethics Counsel Elizabeth Tarbert, who oversees Bar advertising operations, said the Standing Committee on Advertising has taken the position that the exact language in the rule must be used, with no changes.(Indeed, a check of the Tallahassee phone book showed the language used by the Yellow Pages was paraphrased, slightly, and grammatically incorrect.)While it might seem like a minor problem, the violation could land an advertising lawyer before the Bar’s Statewide Advertising Grievance Committee, which handles advertising rule violations.“The majority of large Yellow Pages ads are not in compliance,” Tarbert said. “The Yellow Pages puts the disclosure in tiny, tiny print.”Tony Boggs, who directs the Bar’s grievance operations, agreed. He said many lawyers have complained to the grievance committee that they were told that the Yellow Pages disclaimer would comply with Bar rules, only to find out later it doesn’t.“There is a lot of finger-pointing at sales representatives,” he said. “They’re telling lawyers such things as the ads are in compliance with the Bar rules. Then by either neglect or time running out, the lawyers are not verifying what the phone companies are printing, and they’re printing this little tiny disclaimer that is not in compliance with the rule.”Lawyers can’t delegate their responsibility to comply with the rule, Boggs said. Just as with trust accounting, the lawyer is ultimately held accountable even if a secretary or other office person steals from a client, he added.The grievance committee is “telling lawyers, ‘You’re responsible for complying with the ad requirements, and complying with the rules,’” Boggs said.Tarbert noted the Bar has no authority over the Yellow Pages, and can only hold attorneys responsible for their ads. She recommended that attorney advertisers who may have been misled complain to the Yellow Pages.As for the language of the disclosure, the Rule 4-7.3 spells out what is to be said in various types of ads: (b) Disclosure Statement. Except as otherwise provided in this subdivision, all advertisements other than lawyer referral service advertisements shall contain the following disclosure: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.” Lawyer referral service advertisements shall contain the following disclosure: “The hiring of a lawyer is an important decision. Before you decide to hire the lawyer to whom you are referred, ask that lawyer for written information about that lawyer’s qualifications and experience.” Outdoor advertisements may contain, in lieu of the above disclosure, the following abbreviated version: “Before choosing a lawyer, ask for written information about the lawyer’s legal qualifications and experience.” Disclosure statements must appear in type that is clearly legible and is no smaller than one-fourth of the size of the largest type otherwise appearing in the advertisement. These disclosures, however, need not appear in advertisements in the public print media that contain no illustrations and no information other than that listed in subdivision (c)(11) of rule 4-7.2, or written communications sent in compliance with rule 4-7.4.