Hello everyone and welcome to this Ethics Alert blog which the next installment of my summary review of the new Florida lawyer advertising rules which will become effective on May 1, 2013 at 12:01 am. The Supreme Court of Florida’s opinion is attached and is also at: http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf.
As I indicated in my previous Ethics Alert on these new rules, the Florida Supreme Court gave new numbers to the revised rules stating that it was concerned that, without this modification “use of the same rule numbers could create confusion in case law for many years” since the new rules are “substantially different from the current rules.” The revised advertising rules, as renumbered, are as follows: Rule 4-7.11 (Application of Rules); 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.14 (Potentially Misleading Advertisements); 4-7.15 (Unduly Manipulative or Intrusive Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion); 4-7.18 (Direct Contact with Prospective Clients); 4-7.19 (Evaluation of Advertisements); 4-7.20 (Exemptions From the Filing and Review Requirement); 4-7.21 (Firm Names and Letterhead); 4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory). This review will discuss new rules 4-7.17, 4-7.18, and 4-7.19
Rule 4-7.17 (Payment for Advertising and Promotion). This rule will continue to prohibit a lawyer from paying the costs of advertisements of a lawyer not in the same firm (however, the Comment notes that firms may advertise jointly if all required information is included) and giving anything of value in exchange for a recommendation of the lawyer’s services. The rule has a new subdivision (c) which states: “A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer.”
Rule 4-7.18 (Direct Contact with Prospective Clients). This rule will continue to prohibit in-person solicitation; however, the prohibition against direct mail communication, including e-mail, with prospective clients is broadened to include all written communications from lawyer seeking professional employment, not just the “unsolicited communications” referred to in the current rule. Another significant change to the rule will be that the word “Advertisement” must appear on each page of the communication (instead of only the first page).
Rule 4-7.19 (Evaluation of Advertisements). This rule will require all advertisements (except websites) to be filed with the Bar 20 days before their first public dissemination. The current rule requires only television and radio advertisements to be pre-filed. The rule will also specifically prohibit the filing of “an entire website” for review; however, a lawyer “may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website”.
The rule also states that if the Bar does not send any communication to the filer within 15 days of receipt of a complete filing, or within 15 days of receipt of additional information when requested within the initial 15 days, the lawyer will not be subject to discipline by The Florida Bar; however, if the Bar later notifies the lawyer of noncompliance, the lawyer may be subject to discipline for dissemination of the advertisement after the notice of noncompliance.
The current rules state that the Bar’s finding that an advertisement is in compliance is binding on the Bar in future disciplinary proceedings unless there has been a misrepresentation not apparent from the face of the advertisement; however, the new rules will allow the Bar to change a finding of compliance to noncompliance without providing any justification. New Rule 4-7.19(b) states as follows: “The Florida Bar has a right to change its finding of compliance and in such circumstances must notify the lawyer of the finding of noncompliance, after which the lawyer may be subject to discipline for continuing to disseminate the advertisement.” Interestingly, the Comment to the rule was not changed and still states that “(a) lawyer who files an advertisement and obtains a notice of compliance is therefore immune from grievance liability unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement.”
Finally, new rule 4-7.19(f)(5) will provide a safe harbor period which will allow a lawyer to “take down” a website (or portions thereof) and not be subject to discipline for a non-complying until 15 days after the Bar sends notice of non-compliance to the lawyer’s record Bar address. The rule states that “dissemination of portions of a lawyer’s Internet website(s) that are not in compliance with rules 4-7.14 and 4-7.15 only after 15 days have elapsed since the date of The Florida Bar’s notice of noncompliance sent to the lawyer’s official bar address.”
Bottom line: As I have previously stated, when the revised rules become effective on May 1, 2013, they will be some of the most comprehensive advertisement rules in the country, particularly related to social media and electronic communication, and will be a sea change with regard to lawyer advertising regulation in Florida. Stay tuned…
…and be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670