Florida Bar Board of Governors scheduled to review proposed revisions to Bar Rules related to referral services and lawyer “expert” advertising

Hello everyone and welcome to this Ethics Alert which will discuss the scheduled review by the Florida Bar Board of Governors (BOG) of proposed amendments to the Florida Bar Rules related to private lawyer referral services/qualifying providers and lawyer advertising as expert/specialist when the lawyer is not certified at its July 27, 2018 meeting.  According to the Florida Bar:

“The Board Review Committee on Professional Ethics has on their agenda a question regarding how lawyers can be paid by lawyer referral services — or qualifying providers — including considering several arrangements that are currently banned by Bar rules. Here is an overview and a Q&A on the changes that went into effect on April 30. Overview and Q&A”

“The committee may report on the requests of three lawyer referral companies on whether they are qualifying providers under revised Bar Rule 4-7.22. 411-Pain and 1-800-Ask-Gary said they primarily want to refer callers who need medical assistance to their affiliated clinics and will send those who request legal assistance to participating lawyers at no cost. LegalRFQ wants to create an online system where potential clients could post their legal problems online and participating lawyers could submit bids for handling those issues.”

“In addition, the agenda includes a discussion on an amendment to Bar Rule 4-7.14, which allows attorneys and law firms that are not certified to advertise they are experts or specialists. Experts and Specialists  This amendment is being presented to the board on first reading. Almost three years ago, a federal judge struck down the Bar’s rule prohibiting non-certified lawyers from saying they or their firms are experts or specialists. The Bar’s first attempt to redraft the rule — which said lawyers and law firms that substantially met certification standards could say they were experts or specialists — was rejected by the Florida Supreme Court. The court said the amendment ‘could lead to differing and inconsistent applications.’ The board has a December 17 deadline to refile the amendment with the court.”

Bottom line: The BOG will be considering proposed revisions to the lawyer referral/qualifying provider rules, including fee arrangements that are currently prohibited by the rules, and also an amendment to the certification rule which would address the federal court opinion which found that this rule was unconstitutional as applied and issued an injunction prohibiting its enforcement, which the Bar did not appeal.

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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Florida Bar opposes lawyer initiated petition to make appeal court finding of frivolousness “conclusive” rule violation

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Bar’s response opposing the Petition initiated by a Florida lawyer to amend Florida Bar Rule 3-4.3 which states that a final decision of the Florida Supreme Court, Florida appeals court, or federal appellate court determining prosecution of a frivolous claim“ constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”    The matter is The Florida Bar Re: Petition to Amend Rules Regulating The Florida Bar 3-4.3, 3-5.3, and 4-3.1 (Case No. SC17-1965).  The Response is here: https://efactssc-public.flcourts.org/casedocuments/2017/1965/2017-1965_response_49952_response.pdf

The proposed rule amendment would add a section to Florida Bar Rule 3-4.3 (misconduct or minor misconduct), providing that if the Florida Supreme Court or any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”

The proposed rule would also require a lawyer who has had such a ruling against him or her to notify the Bar within 10 days with copies to opposing counsel.  Bar counsel would docket the case and “The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”

The BOG Disciplinary Procedure Committee (DPC) voted 7-0 to oppose the proposed petition in November 2017 and the BOG voted unanimously to file a response opposing the petition at its December 8, 2017 meeting.  The Bar filed its response opposing the proposed amendment on December 29, 2018.

Bottom line:  As I previously stated, this is rare member initiated petition to amend the Florida Bar rules.  The rule amendment appears to be well intended; however, it is problematic and ill advised.  The Bar’s Response sets forth the reasons that the Bar opposes the rule amendment, including the fact that a civil case involves different parties, different rules and statutes, different goals, and lower evidentiary standards.

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

Proposed Florida Bar rule initiated by Florida lawyer would make court finding of frivolousness “conclusive determination” of rule violation

Hello everyone and welcome to this Ethics Alert which will discuss the Petition initiated by a Florida lawyer to amend the Bar rules and provide that a court determination that an action violates F.S. §57.105, Florida appellate Rule 9.410, or Rule 11, Federal Rules of Civil Procedure “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  The Florida Bar published a Notice in the Florida Bar News that the petition will be filed on November 6, 2017 and members may comment on the Petition after it is filed.  The Bar Notice is here: 10-1-17 Bar News Notice of Filing Petition to Amend Rule.

The proposed rule revision would amend Florida Bar Rule 3-4.3 (misconduct or minor misconduct), by adding a section on frivolous actions which would provide if any Florida or federal appellate court has determined that a court action violated F.S. §57.105, Florida appellate Rule 9.410, or Rule 11 of the Federal Rules of Civil Procedure, that “constitutes a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  Upon being notified of the finding, The Florida Bar would open a file, which would be sent to the grievance committee for review.

The proposed rule also provides that, unless there are aggravating circumstances, the referee or grievance committee considering the complaint can resolve the matter with an admonishment or referral of the lawyer to the Bar’s diversion program (lawyers would be eligible for diversion once every five years under the proposed rule).

The proposed rule would also require a lawyer who has had an appellate ruling that the a lawyer has violated the rules or state law on frivolous actions to notify the Bar within 10 days with copies to opposing counsel. Bar counsel would then docket the case “and The Florida Bar shall prosecute the misconduct in accordance with the rules considering the conclusive determination of a violation of Rule 4-3.1.”

The proposal would also amend the comment to Rule 4-3.1 to refer to the amendment to Rule 3-4.3. The comment to Rule 3-4.3 also provides that, “A lawyer shall not use any funds held in his trust account for payment of any personal obligation imposed upon the lawyer or the lawyer’s law firm as to sanctions pursuant to Section 57.105, Fla. Stats., Rule 9.410 of the Florida Rules of Appellate Procedure, Rule 11 of the Federal Rules of Civil Procedure, or any other similar statute or rule.”

The Florida Bar Rules allow members to directly propose amendments to Bar rules if the there is a petition filed with the Supreme Court signed by 50 Bar members.  This petition was signed by 55 Bar members.  The Board of Governors’ Disciplinary Procedure Committee (DPC) will review the proposed petition and rule amendments and will have a special meeting to discuss it.  A report by the DPC on the petition is expected at the Dec. 8, 2017 BOG meeting.

Bottom line:  This is rare member initiated petition to amend the Florida Bar Rules.  The amendment certainly appears to be well intended; however, since an order finding that a claim or defense is frivolous does not involve a criminal conviction, I am very concerned that the proposed rule that would make an order finding a frivolous filing by an appellate court on a civil matter “a conclusive determination of guilt of misconduct by the lawyer(s) who prosecuted such frivolous claim or defense for violation of Rule 4-3.1.”  I believe (and continue to believe) that a lawyer should be able to challenge such a court order since, among other things, the action and parties are different and the evidentiary requirements underlying such an order are not necessarily the same as those required for the Bar to prove a violation of the Bar rules.  In addition, the courts have inherent authority to sanction lawyers for frivolous filings as well as under the relevant statutes and court rules.

According to the Bar’s October 1, 2017 Notice in the Florida Bar News:

“Members who desire to comment on this proposed amendment may do so within 30 days of the filing of the above-referenced petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar and Thomas O. Wells, Esq. Rule 1-12.1 and Rule 3-7.15 of the Rules Regulating The Florida Bar govern these proceedings.”

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