Category Archives: 2013 Florida comprehensive advertising rule revisions

Florida Bar Board of Governors votes to prohibit actors from reading client testimonials in lawyer advertisements

Hello everyone and welcome to this Ethics Alert blog which will discuss the May 2016 decision of the Florida Bar’s Board of Governors (BOG) to prohibit client testimonials read by actors in lawyer advertisements.

According to an article in the June 15, 2016 Florida Bar News, the BOG debated whether accept or reject a Bar Advertising opinion stating that lawyers are prohibited from using actors to read (and dramatize) client testimonials.  The 2013 revisions to the Florida Bar advertising rules permit the use of client testimonials if certain requirements are met, including that the lawyer not write the testimonial or pay the client for it.  The current advertising rules also permit lawyers to use an actor in a lawyer advertisement if it has the required disclaimer(s).

The BOG reviewed two proposed television advertisements submitted by a law firm.  The first advertisement had the following language in testimonial form: “When I was injured in my car accident, my first thought was: How will I be able to take care of my family? That’s why I called the law offices of . . . . They made sure I could continue to take care of my family with $650,000 in insurance compensation for my car accident injuries.”  The second advertisement had this testimonial language: “I love sports . . . baseball, soccer, all kinds of sports, but after my car accident, I wasn’t sure if I would be able to enjoy playing sports again. I called the law offices of . . . and they helped get me back in the game with a $100,000 insurance settlement.”  Both were to be read by actors.

According to the Bar News article, the chair of the BOG Review Committee on Professional Ethics stated that the BOG committee voted 7-2 to recommend the advertisements violated Florida Bar Rule 4-7.13, which prohibits deceptive and misleading advertisements.   The BOG Review Committee agreed with the Bar advertising staff opinion and the Standing Committee on Advertising which had found that having an actor read a client testimonial would violate the Bar advertising rules.

On a voice vote, the BOG approved the BOG Review Committee on Professional Ethics’ recommendation to reject the proposed advertisements because they violate Florida Bar Rule 4-7.13 prohibiting deceptive and misleading advertisements.

Bottom line:  Lawyers who advertise must be aware that the 2013 revisions to the Florida Bar’s Advertising Rules have somewhat dramatically altered the landscape of advertising in Florida.  The rules now specifically permit both testimonials (with certain requirements) and actors in advertisements (with disclaimers); however, in this decision, the BOG made it clear that actors cannot read such testimonials in lawyer advertisements in Florida.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address will be: 29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761.  E-mail addresses and telephone numbers below will remain the same.  I may also have limited telephone service on Thursday, June 23 and Friday, June 24; however, my e-mail service should still be available 

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

jcorsmeier@jac-law.com

www.jac-law.com

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Association of Professional Responsibility Lawyers (APRL) issues report recommending substantial revisions to advertising and solicitation rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent report of the Advertising Committee of Association of Professional Responsibility Lawyers (APRL) recommending revisions to the lawyer solicitation rules.  The April 26, 2016 report of the APRL Regulation of Lawyer Advertising Committee is here:  https://www.aprl.net/publications/downloads/APRL_2016_Lawyer-Advertising-Supplemental-Report_04-26-16_w-Attach.pdf

The APRL Advertising Committee’s previous report dated June 22, 2015, discussed concerns about overly restrictive and inconsistent state regulation of lawyer advertising, particularly related to electronic media advertising. That APRL report recommended substantial revisions to the lawyer advertising rules “to achieve greater rationality and uniformity in regulatory enforcement of lawyer advertising and marketing and proposed a new Model Rule 7.1 to replace ABA Model Rules 7.1, 7.2, 7.4 and 7.5 and by the use of non-disciplinary means to address most complaints about lawyer advertising.” The June 22, 2015 APRL report is here: https://www.aprl.net/publications/downloads/APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf

The June 22, 2015 report further states: “It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising.  The Committee recommends that the ABA Model Rules governing communications about legal services be consolidated into a single disciplinary rule that simply prohibits false or misleading statements.  Adopting this approach to advertising regulation, combined with reasonable uniform enforcement policies and protocols by state disciplinary authorities, is in the Committee’s view the best way to ensure honest communication by lawyers while at the same time promoting the widest possible access by the public to legal services.”

Current ABA Model Rule 7.3 (solicitation) states:

(a)  A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…

According to the April 26, 2016 report, “(t)he Committee has now considered the solicitation rules and has concluded that the legitimate regulatory objectives of preventing overreaching and coercion by lawyers who use in-person solicitation and targeted communications with the primary motivation of pecuniary gain can best be achieved by combining provisions of Model Rules 7.2 and 7.3 in a single rule. The Committee’s proposed revisions of Model Rules 7.2 and 7.3 in the form of new Rule 7.2 is set forth in Attachment A. The Committee’s revised rule both defines solicitation and distinguishes solicitations that are prohibited from those that are permitted with appropriate protections.”

The proposed rule is below:

Rule 7.2 Solicitation of Clients Solicitation

(b) Except as provided in paragraphs (c) and (e), a lawyer shall not solicit in person by face to-face contact or live telephone, or permit employees or agents of the lawyer to solicit in person or by live telephone on the lawyer’s behalf, professional employment from a prospective client when a significant motive for doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; (2) is a sophisticated user of legal services; (3) is pursuant to a court-ordered class action notification; or (4) has a family, close personal, or prior professional relationship with the lawyer.

The proposed rule revision would still prohibit “in person” solicitation by a lawyer or the lawyer’s agent “face-to-face” or via “live telephone”, “when a significant motive for doing so is the lawyer’s pecuniary gain.” The proposed rule would permit solicitation if the person:

(1) is a lawyer;

(2) is a sophisticated user of legal services;

(3) is pursuant to a court-ordered class action notification; or

(4) has a family, close personal, or prior professional relationship with the lawyer.

The proposed rule would remove the provision in the current model rule which applies the solicitation rule to chat-room communications and would expressly allow a lawyer to solicit a “sophisticated” user of legal services, which it defines as “an individual who has had significant dealings with the legal profession or who regularly retains legal services for business purposes.”  The committee stated that it believes that such a sophisticated user does not need the protection of the lawyer-conduct anti-solicitation standards because of his or her sophistication.   APRL is attempting to present these proposals to the ABA House of Delegates in 2017.

Florida’s current direct contact/solicitation rule is below:

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a)        Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not:

(1)        solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules.

As I reported in my August 20, 2015 Ethics Alert, The Florida Bar’s Board of Governors reversed a Bar Advertising Committee opinion that text messages were direct contact/solicitations and found that a law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and e-mail communications.  The Florida Bar rules also require that the first line of the text state that the communication is “advertising” and, if the text is a communication about a specific matter, it must have language stating that, if the recipient already has an attorney, he or she should disregard the text.  The text must also disclose how the law firm got the recipient’s name.  The August 20, 2015 Ethics Alert is here: https://jcorsmeier.wordpress.com/2015/08/20/florida-bar-board-of-governors-finds-that-unrequested-texts-to-prospective-clients-on-specific-matters-are-not-prohibited-solicitations/

Bottom line:  The APRL’s proposed solicitation rule is a long way from implementation.  Even if the provision is approved by the ABA, the Model Rule is non-binding and each individual state Bar and Supreme Court would have to approve it for it to be implemented and become binding in those states.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and 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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar Board of Governors approves Florida Bar advertising rule amendment regarding lawyer’s use of “expert” and “specialist”

Hello and welcome to this update of my May 19, 2016 Ethics Alert regarding the Florida Bar Board of Governors’ final review of the proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise in advertisements.  The BOG approved the rule amendment as drafted at its meeting on May 20, 2016 in Palm Beach.  The approved amendment is below with the relevant new language in italics:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  As I previously said, it remains to be seen whether this rule amendment is in compliance with the federal court’s order and the United States Constitution on its face and as applied.  If the Bar reasonably interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it may be found to be constitutional if challenged.  Another potential constitutional challenge would be that the rule is vague and ambiguous on its face.  The rule amendment must now be reviewed and implemented by the Florida Supreme Court to become effective.  Stay tuned…

Disclaimer:  this Ethics Alert  is not an advertisement and 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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar Board of Governors will consider final action on rule amendment regarding use of “expert” and “specialist”

Hello and welcome to this Ethics Alert blog which will discuss the upcoming Florida Bar Board of Governors meeting this week in Palm Beach wherein the BOG is scheduled to vote on final action regarding a proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise.

The proposed amendment was drafted in response to a Southern District of Florida federal district court judge’s September 30, 2015 Order/injunction which found that the Bar’s prohibition of non-certified lawyers from stating they have expertise or specialize in an area of law unless they were Board certified was unconstitutional as applied and enjoined its enforcement.

The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcement of the rule.  The federal case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The federal injunction order is in the federal court’s Pacer system here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

The BOG will consider final action on the proposed rule amendment at its meeting on May 20, 2016.  The proposed amendment is below (with the new substantive language in italics):

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  If the BOG approves the proposed Rule amendment, it remains to be seen whether it will be applied in compliance with the federal court’s order and the U.S. Constitution.  If the amendment is approved and the Bar rationally interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it will most likely be found to be constitutional if it is challenged.  Another potential challenge would be on the ground that the rule is unconstitutionally vague and ambiguous on its face.  Stay tuned…

…and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and 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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar Board of Governors considers advertising rule amendments on use of “expert” and “specialist” and approves rule regarding faxes, telegrams and online chatrooms

Hello and welcome to this Ethics Alert blog which will discuss the recent Florida Bar Board of Governors meeting wherein the BOG discussed rule changes to comply with a Florida federal district court judge’s Order finding that Bar rule which prevented non-certified lawyers from stating they have expertise or specialize in an area of law were unconstitutional and enjoining their enforcement.  The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcing the rule.  The case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The injunction order is attached and is in the federal court’s Pacer system here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

According to a March 1, 2016 Florida Bar News article, the chair of the Board Review Committee on Professional Ethics told the BOG at the meeting that the committee is considering several potential amendments; however, it has not agreed on a single version of the amendment. The committee chair said that the committee expected to make a recommendation at the board’s March 10, 2016 meeting; however, it is not clear whether the topic was discussed at that meeting.  The Florida Bar News article is here:  http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/Articles/A1C3E4D1089C7B3785257F61004E782D

The BOG review was started after a September 30, 2015 Order by U.S. Northern District of Florida Judge Robert L. Hinkle in a lawsuit filed against The Florida Bar by the Searcy, Denney, Scarola, Barnhart & Shipley, P.A. law firm.  The lawsuit challenged Bar rules which permit only Florida Bar (or the equivalent) certified lawyers to hold themselves out as “experts” or “specialists” in their advertisements.  The Order stated non-certified lawyers and law firms could have expertise in an area even if they were not certified and that the regulation prevented lawyers from claiming expertise in areas for which there is no available Bar certification and enjoined the Bar from enforcing the rule as applied.

According to an article in the October 15, 2015, Florida Bar News, “As a result of Hinkle’s ruling, the Bar’s Ethics and Advertising Department, which reviews lawyer ads, has announced it will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers.  ‘Instead, the Bar will point out to the filer that the advertisement makes claims of specialization or expertise, and the filer may use them only if the filer can objectively verify those claims’, Bar Ethics Counsel Elizabeth Tarbert said in a letter to Bar officials.”

The BOG also approved the Board Review Committee on Professional Ethics’ recommendation to allow lawyers to communicate directly with potential clients using facsimiles, telegrams, and in online chatrooms as long as the lawyers follow the Florida Bar rules related to direct mail communications/solicitations.  According to Bar Ethics and Advertising Counsel Elizabeth Tarbert, any solicitation made by the lawyer, including  within a chatroom, must be preapproved by the Bar and must also comply with any applicable state and federal laws on solicitations using those methods of transmission.

The direct communications must be characterized as “advertisements” and tell the recipient to disregard them if they already have an attorney in the matter. The amendments were revised for uniformity after the BOG recently decided that direct text communications were permissible under Bar rules.  The rule amendments will now be sent to the Florida Supreme Court for review and potential approval.

Bottom line:  The BOG will hopefully approve a Bar Rule amendment which will provide constitutionally compliant guidance to lawyers regarding when they can state that they are “experts” or “specialists”, even if they are not certified by The Florida Bar (or the equivalent).  It is most likely that the rule will have minimum requirements such as the number of years of practice and experience, among other potential criteria.  Stay tuned……and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and 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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

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New York City Bar Association issues ethics opinion addressing LinkedIn profiles and New York attorney advertising rules

Hello and welcome to this Ethics Alert blog which will discuss the recent Formal Opinion of the Association of the Bar of the City of New York Committee on Professional Ethics which concluded that a lawyer’s LinkedIn profile is not subject to New York Bar advertising rules if it is not posted specifically for the purpose of attracting clients and the profile will be considered to be attorney advertising only if it meets all five of the criteria listed in the opinion.  The opinion is Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn (December 2015) and the link to the opinion is here: http://www.nycbar.org/ethics/ethics-opinions-local/2015opinions/2350-formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin

According to the opinion, a New York lawyer’s LinkedIn profile or other content will be considered to be lawyer advertising only if it meets all five of the following criteria:

  • it is a communication made by or on behalf of the lawyer;
  • the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
  • the LinkedIn content relates to the legal services offered by the lawyer;
  • the LinkedIn content is intended to be viewed by potential new clients; and
  • the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.

The opinion further states that “(g)iven the numerous reasons that lawyers use LinkedIn, it should not be presumed that an attorney who posts information about herself on LinkedIn necessarily does so for the primary purpose of attracting paying clients. For example, including a list of ‘Skills’, a description of one’s practice areas, or displaying ‘Endorsements’ or ‘Recommendations’, without more, does not constitute attorney advertising.”

The opinion concludes that: “(i)f an attorney’s individual LinkedIn profile or other content meets the definition of attorney advertising, the attorney must comply with the requirements of Rules 7.1, 7.4 and 7.5, including, but not limited to: (1) labeling the LinkedIn content ‘Attorney Advertising’; (2) including the name, principal law office address and telephone number of the lawyer; (3) pre-approving any content posted on LinkedIn; (4) preserving a copy for at least one year; and (5) refraining from false, deceptive or misleading statements. These are only some of the requirements associated with attorney advertising. Before disseminating any advertisements, whether on social media or otherwise, the attorney should ensure that those advertisements comply with all requirements set forth in Article 7 of the New York Rules.

Bottom line:  According to this New York City ethics opinion, a LinkedIn profile will not be considered to be a lawyer advertisement unless certain conditions are met.  It is my opinion that most, if not all, other jurisdictions would agree with this analysis and opinion.  This opinion provides a good summary of the conditions which may cause a LinkedIn profile to become a lawyer  advertisement.

Be careful out there!

Disclaimer:  this e-mail is not an advertisement and 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

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Bar will not prohibit non-certified lawyers from making “objectively verifiable” claims of specialization/expertise

Hello and welcome to this Ethics Alert update which will discuss the fallout from the September 30, 2015 Order and injunction by U.S. Northern District of Florida Judge Robert Hinkle finding that the Florida Bar Rule prohibiting truthful claims of expertise without certification is unconstitutional and enjoining its enforcement.  The order is in Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The order is attached and is in Pacer here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

As I reported in my December 23, 2013 and October 2, 2015 Ethics Alert blogs, the Florida law firm of Searcy Denney Scarola Barnhart & Shipley, P.A. filed a federal lawsuit against The Florida Bar in December 2013 after the Bar found that language on the law firm’s website violated of Florida Bar Rule 3-7.14, which prohibits claims of expertise unless a lawyer is Florida Bar Board certified in that area of practice, whether truthful or not.

The Florida Bar advised the Searcy Denny law firm that it was prohibited from claiming that it “specializes or has expertise in mass-tort or unsafe-product cases, or even in personal-injury cases, even though the firm undeniably has expertise in these areas.”  The Order also stated: “ Nor can any individual attorney claim to specialize or have expertise in mass-tort or unsafe product cases, even if the attorney handles only cases of that kind, and even if the attorney has successfully handled many such cases.”

According to an article in the October 15, 2015, Florida Bar News by Gary Blankenship, “As a result of Hinkle’s ruling, the Bar’s Ethics and Advertising Department, which reviews lawyer ads, has announced it will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers.  ‘Instead, the Bar will point out to the filer that the advertisement makes claims of specialization or expertise, and the filer may use them only if the filer can objectively verify those claims’, Bar Ethics Counsel Elizabeth Tarbert said in a letter to Bar officials.”

Bottom line: The Florida Bar apparently has decided (at this point) to concede that a lawyer may claim that he or she specializes or has expertise in an area of practice even if the lawyer is not certified to practice in that area, with the important caveat that the lawyer must be able to “objectively verify” the claim of expertise or specialization (i.e. prove that it is truthful).

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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