May 15, 2000 Regular News Court further defines self-laudatory advertising rule Court further defines self-laudatory advertising rule An attorney can say in an ad that he is “AV” rated by Martindale-Hubbell and that rating is Martindale-Hubbell’s highest, according to a three-judge panel of the 11th U.S. Circuit Court of Appeals. But the court rejected the lawyer’s assertion that a Florida Bar advertising regulation — since changed — barring “self-laudatory” statements was unconstitutionally vague.Orlando attorney Steven G. Mason had challenged the Bar’s refusal to let him say in an ad that he is “`AV’ rated, the Highest Rating Martindale-Hubbell National Law Directory.”A federal Middle District judge rejected his claim that the statement was not self-laudatory and that the rule was unconstitutionally vague. The appellate judges, however, said the Bar had no legitimate interest in rejecting the statement, although they found the underlying regulation — which has since been rewritten and the words “self-laudatory” dropped — was constitutional.The 11th Circuit noted that while commercial speech is protected by the constitution, it may be regulated to protect the public. But that regulation must meet the four requirements of Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557 (1980).The court said while the Bar met most of the Hudson tests and had a substantial interest in regulating lawyer ads, the application of the self-laudatory rule went too far. The court disagreed with the district judge’s finding that the public’s unfamiliarity with the Martindale-Hubbell rating system would make Mason’s use of it “dangerously misleading.”“Unfamiliarity is not synonymous with misinformation,” the opinion said. “. . . . Moreover, the Bar presented no studies, nor empirical evidence of any sort to suggest that Mason’s statement would mislead the unsophisticated public.”The opinion said the Bar offered only speculation and unsupported conjecture.Since it failed on that part of the Hudson test, the court declined to apply the final requirement that the regulation be a reasonable fit to the state’s interest.But while upholding Mason on that claim, the court rejected his challenge that the self-laudatory regulation was unconstitutional.“Although Mason is correct that Rule 4-7.2(j) is capable of multiple meanings and potentially very broad application, the rule’s language is plain and would adequately put Bar members on notice that merely self-referential and laudatory statements or statements describing the quality of their legal services are prohibited,” the opinion said.A footnote to the opinion noted the rule has been rewritten (and renumbered) in recent changes approved by the Florida Supreme Court, with the only change being the term “self-laudatory” was omitted.The case is Mason v. Florida Bar, case no. 99-2138. The opinion was issued on April 6.