Category Archives: Bar regulation and antitrust

Florida Bar’s Board of Governors considers rule revisions prohibiting misleading Google ad words and permitting credit charges to clients

Hello everyone and welcome to this Ethics Alert, which will discuss the Board of Governor’s review of potential revisions to Florida Bar Rules 4-7.13, which would prohibit misleading words and phrases in Google ad words, and revisions to Florida Bar Rule 4-1.5(h), which would permit lawyers to charge a client the actual cost of accepting a credit payment.

The Bar Board of Governor’s backup materials regarding proposed revised Bar Rule 4-1.5(h) indicate that the basis for the proposed rule change is a potential allegation of an improper restraint of trade in violation of the Sherman Antitrust Act.

The Bar’s recent summaries of the proposed rule revisions and their status in the BOG review process are below.

PROPOSED ADVERTISING RULE CHANGES 

The Board Review Committee on Professional Ethics will be considering a request for a rule amendment (to Rule 4-7.13) that would state it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the Internet or other media, including directly or through a group advertising program. For example, the proposal would ban the purchase of another lawyer’s name in Google ad words. The Board’s Citizens Advisory Committee also supports the amendment, stating that the practice is misleading, particularly to vulnerable consumers. 

FINAL ACTION ON CREDIT SERVICE CHARGES 

The Board will be taking final action on a proposed rule change that would delete the current prohibition against charging a service charge for client’s use of a credit plan and allow lawyers to charge the actual charge imposed on the lawyer by the credit plan. Rule 4-1.5(h) currently permits lawyers to accept credit cards to pay for fees and costs, but prohibits lawyers from charging the client the credit card fee charged to the lawyer as a vendor.

Bottom line:  Proposed revised Rule 4-7.13, which would prohibit misleading Google ad words, would be consistent with other jurisdictions that have considered the issue.  Proposed revised Rule 4-1.5(h), which would permit a lawyer to require the client to pay the actual credit card charges would reverse the prior rule, which specifically prohibited requiring the client to pay such merchant charges.

Stay tuned and 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under Attorney Ethics, Bar antitrust, Bar regulation and antitrust, Florida Bar, Florida Bar rule permitting lawyers to charge credit card fees to clients, Florida Bar rule using GoogleAds words to misdirect to another firm, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer charging credit card fees to client, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer using GoogleAd words to misdirect users

U.S. DOJ files Statement in TIKD in federal lawsuit arguing that Florida Bar is not immune from Sherman antitrust allegations

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent (March 12, 2018) Statement of Interest filed by the United States Department of Justice arguing that The Florida Bar is not immune or exempt from antitrust under the Sherman Antitrust Act based upon the U.S. Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court, Southern District of Florida-Miami Division).  The Statement of Interest is available on the PACER federal document system here:  https://www.pacer.gov/login.html (subscription required).

As I previously blogged, TIKD Services, LLC filed the federal lawsuit against The Florida Bar, the Ticket Clinic law firm, and other individuals in the U.S. District Court, Southern District of Florida on November 8, 2017.  The TIKD app allows an individual who has received a traffic citation to upload a photo of the citation and pay a fixed fee and TIKD retains an attorney to represent that individual.  If the individual receives points against his or her license, TIKD refunds the payment and pays the cost of the ticket.  The business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by the individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of Florida Bar disciplinary rules, including fee splitting and interference with the lawyer’s independent professional judgment.  A complaint was filed with The Florida Bar by members of the law firm alleging that TIKD was engaging in the unauthorized practice of law (UPL).  That complaint is currently pending and the Bar has recommended further proceedings.

TIKD then filed the federal lawsuit court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The defendants include The Florida Bar, attorney Mark S. Good, who founded The Ticket Clinic law firm, and other individuals.  According to the federal Complaint, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story and a few months later, attorneys with The Ticket Clinic threatened to report two of TIKD’s lawyers to The Florida Bar if they continued to work with TIKD.

A state lawsuit was filed and was settled; however, TIKD alleges in the federal Complaint that The Florida Bar and the Ticket Clinic law firm continued to make a “concerted effort” to put it out of business, and that the firm’s lawyers continued filing “baseless ethics complaints” against attorneys who represent TIKD customers.

A recent (February 21, 2018) Motion for Sanctions filed by the Ticket Clinic law firm alleged, inter alia, that The Florida Bar has immunity, which immunized the individual defendants, that the individuals have immunity on other grounds, that the lawsuit is frivolous on other grounds, and that the lawsuit should be dismissed and the Plaintiffs should be sanctioned.

On March 12, 2018, the U.S. Department of Justice filed a statement of interest stating that The Florida Bar is not immune from federal or state antitrust liability under the Sherman Act as an arm of the state based upon the U.S. Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  According to the statement:

“The Florida Bar defendants assert, as one ground for their motion to dismiss, that they are entitled to protection against Sherman Act claims by the state-action doctrine of Parker v. Brown, 317 U.S. 341 (1943), without having to satisfy either the “clear articulation” or “active supervision” requirements of that doctrine. That position is incorrect. The Supreme Court’s most recent state-action decision, N. Carolina State Bd. of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), clarified the state-action doctrine with respect to state agencies that regulate learned professions. It requires that the Bar, if “controlled by active market participants,” id. at 1114, must satisfy the clear articulation and active supervision requirements in order to obtain state-action protection.”

Bottom line:  As I have previously blogged, this is one of the first cases filed in Florida (and possible in any jurisdiction) which directly alleges that a State Bar’s procedures violate the Sherman Antitrust Act in reliance upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The Statement of Interest filed by the U.S. Department of Justice agrees with that analysis and argues that it is correct.  Stay tuned…

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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney Ethics, Bar antitrust, Bar regulation and antitrust, BAR UPL antitrust, Florida Bar, Florida Bar TIKD antitrust lawsuit, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer assisting unlicensed practice of law, Lawyer assisting unlicensed practice of law (UPL), Lawyer assisting UPL, Lawyer ethics, Lawyer Ethics and Professionalism, North Carolina Dental Board, North Carolina dental whitening case and UPL, TIKD UPL Bar request for Florida Supreme Court injunction, TIKD US DOJ Statement of Interest no Bar immunity, TIKD v Florida Bar Motion for Sanctions, TIKD v. Florida Bar antitrust federal lawsuit, U.S. Constitution and UPL regulation- professional speech and application of UPL rules, U.S. Supreme Court

Startup app TIKD sues Florida Bar for alleged antitrust violations; Florida Bar moves to disqualify former president from case

Hello everyone and welcome to this Ethics Alert which will discuss the recent lawsuit filed by Startup app TIKD Services against The Florida Bar and the Ticket Clinic law firm for, inter alia, antitrust violations and the Bar’s Motion to Disqualify its former president, Ramón A. Abadin from representing TIKD, claiming that he was privy to privileged and confidential communications and information related to the matter.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court Southern District of Florida-Miami Division).

The owner of the company, Chris Riley, says he got the idea for TIKD after he received a speeding ticket in Miami and had to pay a lawyer and was assessed fines and costs.  He then came up with an app to help motorists challenge their tickets without having to go to court.  The app permits the ticketed person to upload a photo of the ticket and pay a fixed amount.  TIKD then retains an attorney to represent that person and, if he or she is ultimately is assessed with points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.  The TIKD business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by an individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment.  TIKD states that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”

TIKD subsequently filed a lawsuit in federal court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The lawyers representing TIKD include Ramón A. Abadin, a recent former President of the Florida Bar.  The defendants include, among others, The Florida Bar and attorney Mark S. Good, who founded The Ticket Clinic; which has offices in Florida, Georgia and California.

According to the federal lawsuit, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story.  A few months later, attorneys with The Ticket Clinic, a Miami law firm that handles traffic tickets, threatened to report two of TIKD’s lawyers to the Bar if they continued to work with TIKD.  Litigation was later filed and the parties reached a settlement last August; however, TIKD alleges that the Bar and the Miami lawyer firm continued a “concerted effort” to put it out of business and that Ticket Clinic lawyers continued filing “baseless ethics complaints” against attorneys represent TIKD customers.

On December 1, 2017, The Florida Bar filed a Motion to Disqualify Ramón A. Abadin alleging that, during his 2015-16 term as president, he “was provided attorney-client and attorney work-product communications and advice about and involving the specific antitrust issues and allegations asserted in this action”, including an amicus brief that was filed in the U.S. Supreme Court case of North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015).  In that opinion, the U.S. Supreme Court found that the N.C. dental board did not have state action immunity because its decisions were final and not subject to review. The Florida Bar joined in an amicus brief in that case arguing state action immunity should apply.

Bottom line:  This appears to be the one of the first cases filed in Florida which directly alleges that The Florida Bar’s procedures violate the Sherman Antitrust Act based upon the decision of the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  As an added element of intrigue, the Bar’s very recent former president was among the lawyers filing the complaint and the Bar has filed a motion to disqualify him from the matter.

Stay tuned…and 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, Bar antitrust, Bar regulation and antitrust, BAR UPL antitrust, Florida Bar, Florida Bar TIKD antitrust lawsuit, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer ethics, Lawyer Ethics and Professionalism, North Carolina Dental Board, North Carolina dental whitening case and UPL, UPL and professional speech, UPL North Carolina federal judge opinion on regulation of UPL

California law requires California Bar to split into mandatory regulatory and voluntary trade association entities

Hello everyone and welcome to this Ethics Alert which will discuss the recent California law that requires the California Bar to split into separate regulatory and trade association entities, which appears to be in response to the U.S. Supreme Court’s North Carolina dental antitrust case in 2015.  The State Bar of California’s press release announcing the “historic” law is here: http://www.calbar.ca.gov/About-Us/News-Events/News-Releases/ArtMID/10234/ArticleID/525/State-Bar-prepares-to-implement-historic-reforms-followingGov-Brown-signature-on-the-agency%E2%80%99s-annual-fee-bill

According to the State Bar press release: “Today (October 2, 2017) Gov. Jerry Brown signed SB 36 into law, the fee bill for the State Bar of California. In addition to setting the annual licensing fee for lawyers, SB 36 includes historic reforms for the public protection agency.”

Under the law, effective in 2019, the California Bar will act only as the disciplinary and regulatory agency and membership will be mandatory for all of the state’s lawyers.  The current 19-member Bar board will transition into a group of 13 individuals serving four-year terms.  Six of the 13 members must be members of the public.  All board members will be appointed by the California Supreme Court, the state legislature, and the governor and will no longer be elected.

A separate nonprofit entity will be created for trade association activities and will include all Bar sections.  Membership in that entity will be voluntary and will include an annual membership fee.

The California Bar must also comply with a California Supreme Court policy to identify and address any proposed decision of the board of trustees which raises antitrust concerns.  This requirement is clearly an attempt to avoid allegations of antitrust violations which were found by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015).

In that 2015 case, the USSC found that the North Carolina dental regulatory board, which was made up of primarily dentists, did not have state-action antitrust immunity in its attempts to prohibit non-dentists from providing teeth-whitening services to the public.

The regulation of lawyers (and other licensed professionals) in Florida and other states is implemented through boards, commissions, committees, or other similar entities which investigate and make findings.  In Florida, there is no separate trade association; however, findings by Bar Counsel, grievance committees, and the Bar Board of Governors are subject to review by the Florida Supreme Court.

I previously blogged about North Carolina State Board of Dental Examiners v. Federal Trade Commission and its aftermath in my Ethics Alerts here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/, here: https://jcorsmeier.wordpress.com/2015/06/24/legalzoom-files-federal-antitrust-lawsuit-against-the-north-carolina-state-bar-citing-2015-ussc-dental-board-case/, and here: https://jcorsmeier.wordpress.com/2015/10/28/legalzoom-settles-multi-million-dollar-antitrust-suit-against-the-north-carolina-state-bar-with-agreement-to-continue-operating/

In some states, these antitrust issues are most likely not in play.   For example, the Illinois Attorney Registration and Disciplinary Commission oversees the registration and discipline of attorneys and all Illinois lawyers are required to pay dues to that entity.  All final disciplinary orders are also issued by the Illinois Supreme Court.  The Illinois State Bar Association is a separate voluntary association which engages in trade association activities.

Bottom line: This California law is clearly in response to (and an attempt to overcome) the antitrust issues identified by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  Will other states follow?  Stay tuned…

…and 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney discipline, Bar regulation and antitrust, California law requiring split of Bar regulation and trade association activities, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer ethics, LegalZoom, LegalZoom antitrust, North Carolina Dental Board, North Carolina dental whitening case and UPL