Category Archives: Florida Bar

Florida lawyer CLE reporting deadlines for March, April, May, June, and July 2020 extended to August 31, 2020

Hello everyone and welcome to this Ethics Alert, which will discuss the recent decision The Florida Bar’s BOG to further extend the February, March, April, May, June, and July 2020 Continuing Legal Education (CLE) reporting deadlines for Florida lawyers to August 31, 2020 due to the COVID-19 pandemic.  The Florida Bar News article is here:  https://www.floridabar.org/the-florida-bar-news/428150/

The reporting deadline extension was already in place for those lawyers who were required to report in February, March, April, and May 2020 and has now been expanded to those lawyers with deadlines in June and July 2020.

Many (if not all) upcoming in-person CLE programs have been canceled and the processing and shipping of orders for Bar CLE CDs and CLE DVDs have suspended; however, The Florida Bar’s on-demand CLE remains available and the link to those CLE programs is here:  https://tfb.inreachce.com/

In addition, The Florida Bar’s Practice Resource Center (LegalFuel) offers 90 free CLE programs online with 119.5 hours of general CLE credit.  Those CLE programs include 5 hours of ethics, 71 hours of technology, 8 hours of mental-health awareness, and 5 certification credits. The link to those programs is here: www.legalfuel.com/free-cle.

Bottom line: In another move caused by the pandemic, The Florida Bar has extended the deadlines for reporting CLE to August 31, 2020.  As I also previously reported, as a result of the pandemic, the Florida Supreme Court issued an Order on March 20, 2020 (amended April 9, 2020) suspending all time periods and deadlines for the following:

  1. Chapter 3 (Rules of Discipline), the Rules Regulating the Florida Bar for all Florida Bar discipline cases,
  2. Chapter 10 (UPL) for all unlicensed practice of law cases, and the filing and
  3. Lawyer advertisement evaluation requirements under Rule Regulating the Florida Bar 4-7.19 (Evaluation of Advertisements).

The link to the April 9, 2020 amended Order is here:  https://www.floridasupremecourt.org/content/download/633617/7199394/file/sc20-392.pdf

Stay safe and healthy 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Florida Bar, Florida Bar CLE deadlines, Florida Continuing Legal Education (CLE) requirements, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Uncategorized

Florida Bar Board of Governors reverses advertising opinion and finds that solicitation rules apply to targeted social media

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG)  reversal of a Florida Bar advertising committee opinion that found that targeted social media advertisements were not subject to the solicitation rules.

The BOG voted at its January 2020 meeting to reverse an opinion by the Bar’s Standing Committee on Advertising related to a lawyer who wanted to use information that prospective class action members provided to social media platforms and target specific advertisements to their social media feeds.  The BOG’s Board Review Committee had previously voted 9-0 to recommend that the BOG reverse the Standing Committee on Advertising and find that these types of advertisements are direct solicitations and are required to comply with the direct contact/solicitation rules.

The inquiring lawyer did not indicate the specific legal matter that would be pursued; however, the lawyer gave, as an example, an advertisement for an employment class action that would be targeted to users who had told social media providers that they currently or previously worked for the potential defendant company.

The Bar advertising committee’s opinion found that this type of advertisement was subject to the direct contact/solicitation rule; however, it must comply with the general advertising rules.  The Florida Bar staff and professional ethics committee had also previously issued opinions stating that a lawyer posting information in an online chat room or sending text messages to telephones are required to comply with the direct contact/solicitation rules.

Bottom line:  As a result of the BOG decision (and unless it is reversed), lawyers who wish to use such targeted social media advertisements will be required to comply with the strict requirements of Florida Bar Rule 4-7.18(b) regarding direct contact with prospective clients.  Lawyers should also keep in mind that ethics and advertising opinions (and a BOG reversal of an opinion) are not binding and for guidance only; however, lawyers may be still subject to investigation and potential discipline if the interpretation of the rule is upheld.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Bar Rule 4-7.18, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida lawyer solicitation social media class action Rule 4-7.18, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer social media ethics, Lawyer solicitation class action social media, Lawyer solicitation social media, Uncategorized

Florida Bar Ethics Committee votes to publish proposed opinion providing guidance in responding to negative online reviews

Hello everyone and welcome to this Ethics Alert, which will discuss the recent vote by the Florida Bar’s Professional Ethics Committee (PEC) to publish a proposed ethics advisory opinion providing guidance to lawyers in responding to negative online reviews and complaint for comment.  Proposed Ethics Advisory Opinion 20-1 is here: https://www.floridabar.org/the-florida-bar-news/committee-adopts-ethics-opinion-regarding-online-reviews/

The PEC voted at its February 7, 2020 meeting to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members.

The Florida Bar ethics staff previously issued Florida Bar Staff Opinion 38049 in 2018 in response to a lawyer’s inquiry.  The BOG approved the staff opinion on June 15, 2018; however, since the opinion was a reply to a single lawyer, it was not published.  I discussed  Florida Bar Staff Opinion 38049 provided a link to that opinion here: https://jcorsmeier.wordpress.com/2018/08/01/florida-bar-professional-ethics-committee-approves-staff-opinion-addressing-lawyer-responses-to-negative-online-reviews/

That staff opinion was minimally revised by the PEC and will be published online and in print in The Florida News for Bar member comments. The proposed formal advisory opinion concludes:

“Therefore, if the inquirer chooses to respond to the negative online review and the inquirer does not obtain the former client’s informed consent to reveal confidential information, the inquirer must not reveal confidential information regarding the representation, but must only respond in a general way, such as that the inquirer disagrees with the client’s statements. The inquirer should not disclose that the court entered an order allowing the inquirer to withdraw because that is information relating to the client’s representation and the client did not give informed consent for the inquirer to disclose.”

The proposed advisory opinion states that Florida Bar Rule 4-1.6(c) provides 6 exceptions permitting or mandating that a lawyer reveal confidential client information; however, none of the exceptions addresses online reviews.  The proposed opinion also refers to the comment to Florida Bar Rule 4-1.6, which states:

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation….(t)he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”

The proposed opinion states that the language in Texas Ethics Opinion 622 “would be an acceptable response” to negative online reviews:

“A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”  “The (lawyer) also may state that the (lawyer) disagrees with the facts stated in the review.”

According to the Bar’s Notice, the PEC will consider any comments received at their meeting on Friday, June 19, 2020 in Orlando.

“Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 31, 2020.”

Bottom line:  Lawyers must be aware that negative online reviews do not fall within any of the exceptions which permit or require revealing confidential client information and, absent client informed consent, lawyers are not permitted to reveal confidential information in responding to the negative review.  In our digital and social media age, perhaps a change in the Bar Rule permitting such responses would be appropriate.

I will keep you advised 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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

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, Attorney/client confidentiality, Attorney/client privilege and confidentiality, Confidences and negative online client review, Confidentiality, Florida Bar, Florida Bar ethics opinion responding to negative online review, Florida Bar Rules, Florida Lawyer Ethics and Professionalism, Florida proposed ethics opinion 20-1- response to negative online reviews, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, lawyer confidentiality, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics responding to negative online review complaint confidentiality, Uncategorized

Florida Bar’s Board of Governors approves proposed Bar rule amendment to pay inventory attorneys

Hello everyone and welcome to this Ethics Alert which will discuss recent Florida Bar Board of Governors (BOG) approval of proposed amendments to Florida Bar Rule 1-3.8, Right to Inventory, which would authorize payments to designated inventory attorneys to assist and wind up law practices of lawyers who die, disappear, or are otherwise unable to practice law.  The inventory attorney is also permitted to take over the representation of the previous lawyer’s clients if those clients consent.

The BOG voted to support the BOG Disciplinary Procedure Committee’s proposal at its December 6, 2019 meeting in Orlando.  The proposed rule revision has been under consideration since 2017 and had a first reading at the BOG’s December 2018 meeting; however, it was deferred for further review.

Florida Bar Rule 1-3.8 currently requires Florida Bar members to designate an inventory attorney to wind down the practices of lawyers who die, disappear, or are otherwise unable to practice law.  According to a Bar staff report, the Bar opened an average of 41.4 inventory cases each year during the past five years and each of the Bar’s five branch offices spend approximately 120 hours per year searching for inventory attorneys.

Under the proposed Bar rule revisions, an inventory lawyer who pursues payment for work performed would be required to submit an application detailing the work performed along with other information and request the payment.  The Executive Director of the Florida Bar would set the amount of payment with the approval of the BOG and the Bar would administer the payments.  The initial cost of the payments to inventory attorneys was estimated to be $100,000.00; however, the costs are expected to rise.

Proposed Rule 1-3.8(e) states:

(e) Payment of Inventory Lawyer. The Florida Bar may pay a fee set by the bar’s executive director as approved by the board of governors and within the bar’s annual budget for that year to a lawyer who agrees to conduct an inventory under this rule. Payment by The Florida Bar to an inventory lawyer will be made only with prior approval by the bar, on an application approved by the bar, and under parameters set by the bar.

The proposed Rule 1-3.8 amendments will be sent to the Florida Supreme Court for final review and potential implementation.

Bottom line:  This Bar Rule amendment is designed to address issues related to inventory attorneys and pay them for their work, presumably to encourage lawyers to become inventory attorneys.  I will follow this proposed Bar Rule amendment and keep you advised.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

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 Florida Bar, Florida Bar Rule 1-3.8, Florida Bar Rule 1-3.8 inventory attorney, Florida Bar rule revision to pay inventory attorneys, Florida Bar Rules, Florida Supreme Court, Inventory attorneys, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Florida UPL Committee will consider New Jersey lawyer’s request for formal advisory opinion regarding remote practice from Florida

Hello everyone and welcome to this Ethics Alert which will discuss a New Jersey lawyer’s request for formal advisory opinion regarding remote practice related to non-Florida matters from his Florida home.  The lawyer’s request for the formal UPL opinion is here: https://www-media.floridabar.org/uploads/2019/12/Restaino_Request.pdf

The Florida Bar has provided notice that the Bar’s UPL Standing Committee will consider a New Jersey lawyer’s request for a formal advisory opinion on whether it constitutes the unlicensed practice of law for the lawyer, who is a Florida resident employed by a New Jersey law firm which has no place of business or office in Florida, to work remotely from his Florida home only on matters that concern federal intellectual property rights not Florida law) and without any public presence or profile in Florida as an attorney.

The Bar’s UPL Committee will hold a public hearing on February 7, 2020, at the Hyatt Regency Orlando Hotel, 9801 International Drive, Orlando, FL 32819 beginning at 9:00 a.m., to receive input on the question and testimony from interested individuals.  Written testimony can also be sent to The Florida Bar, UPL Dept., 651 E. Jefferson St., Tallahassee, FL 32399-2300, or by e-mail before the hearing.

The February 7 hearing is the first step in the UPL formal advisory opinion process and, after the hearing, the committee will decide whether to issue a proposed opinion.  The committee has not previously considered the question and is not required to issue an opinion after the hearing.

Bottom line:  If the Florida Bar’s UPL Committee renders a formal opinion, it should provide guidance on the issue and any proposed opinion by the committee will be advisory only.

I will follow the issue and keep you advised…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.

2999 Alt. 19, Suite A

Palm Harbor, Florida 34683

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, Florida Bar, Florida Bar rules remote practice by out of state lawyer, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Uncategorized, UPL Committee opinion re remote practice from Florida

Proposed Comment to Florida Bar Rule 4-7.18 would permit exchange of contact information at business events and on business related social media

Hello everyone and welcome to this Ethics Alert which will discuss the proposed revisions to the Comment to Florida Bar Rule 4-7.18 which would permit the exchange of contact information at business events and on business-related social media, with caveats. The proposed revised language is on the agenda for review and final approval by the Florida Bar’s Board of Governors (BOG) at its meeting on January 31, 2020 in Tallahassee.

The BOG’s Professional Ethics Committee proposed additional language in the Comment to Bar Rule 4-7.18, Direct Contact With Prospective Clients which would specifically permit the exchange of contact information at business events and on business-related social media.  The proposed Comment language also cautions that lawyers should not discuss a specific legal matter if the prospective client initiates it, “and defer further discussion to a more appropriate location” if the discussion would “endanger” a prospective client’s confidentiality.

According to the BOG meeting agenda, the justification for the amendment is that “(t)he proposed commentary recognizes that lawyers frequently exchange contact information at business-related events and on business-related social media platforms. These events are usually at least in part to facilitate networking, the initiation of the exchange of contacted information is expected at these events, the lawyer normally would not know the prospective client has the need for specific legal services, and the prospective client would normally be a sophisticated user of legal services and less likely to be unduly influenced by the request.”

The complete proposed Comment language is below:

Permissible Contact

A lawyer may initiate the routine mutual exchange of contact information with prospective clients who are attending the same business or professional conference or meeting or business-related social gathering if the lawyer initiates no further discussion of a specific legal matter. Similarly, a lawyer may initiate the exchange of contact information and profiles via a specific social media platform that is established for the purpose of businesses and professionals exchanging this type of information if the lawyer initiates no discussion of specific legal matters. If a prospective client then initiates discussion of a specific legal matter, the lawyer should decline to discuss the matter at the initial contact and defer further discussion to a more appropriate location when the discussion would endanger a prospective client’s confidentiality. Lawyers should not interpret the above to allow a lawyer who knows a person has a specific legal problem to go to a specific conference or meeting where that prospective client will be in attendance in order to initiate the exchange of contact information. An accident scene, a hospital room of an injured person, or a doctor’s office are not business or professional conferences or meetings within the meaning of the discussion above.

Bottom line:  If implemented, the additional language in the Comment would clarify that lawyers can exchange contact information with potential clients at business events and on business-related social media however, it will caution that lawyers should not discuss a specific legal matter if the prospective client initiates it and if the discussion would compromise a prospective client’s confidentiality, the lawyer should defer discussion of the matter to a more appropriate location”.

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 Communication with clients, Confidentiality, Florida Bar, Florida Bar Rule 4-7.18 Comment- communication with potential clients business meetings and business social media, Florida Bar Rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising rules, Lawyer communication with potential clients, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Referee recommends dismissal of Florida Bar UPL Petition against TIKD and oral argument has been scheduled before Supreme Court

Hello everyone and welcome to this Ethics Alert with an update on the status of The Florida Bar’s Petition alleging that the TIKD business model constitutes UPL and discuss the referee’s report recommending dismissal of the petition and the oral argument scheduled for March 2020.  The case is: The Florida Bar v. TIKD Services LLC and Christopher Riley, Case No.: SC18-149, Lower Tribunal No(s).: 20174035 (11B); 20174045 (11B).  The January 19, 2019 report of referee recommending dismissal is here: https://www.responsivelaw.org/uploads/1/0/8/6/108638213/report_of_referee.pdf and the Florida Supreme Court’s Order scheduling oral argument for March 4, 2020 is here: https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_order_239445_a01g.pdf

As I previously blogged, the TIKD internet application permits a 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 (or were) in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment.  TIKD stated 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.”

On January 23, 2018, The Florida Bar filed a Petition Against the Unlicensed Practice of Law against TIKD and its founder, Christopher Riley.  The Petition alleged, inter alia, that TIKD and Riley “advertise in a fashion which may lead a reasonable lay person to believe Respondents are qualified to offer legal services to the public”, “either personally or through advertisement offer traffic ticket defense legal services for a fixed price along with an offer to pay all fines and court costs with a money-back guarantee” and, “either personally or through advertisement offer traffic ticket defense legal services while suggesting that their services are the equivalent of or a substitute for the services of an attorney.”

The Bar’s Petition requested the Court to find that the alleged conduct constitutes the Unlicensed Practice of Law and issue a permanent injunction “preventing and restraining Respondents from engaging in the acts complained of and from otherwise engaging in the practice of law in the State of Florida, until such time as Respondent Riley is duly licensed to practice law in this state.”  TIKD filed an Answer and motions and a referee was assigned.

On January 24, 2019, after the parties filed motions and a status hearing was held, the referee issued her report.  The report of referee states:

“After a careful review of the portions of TIKD’s website submitted by The Florida Bar and TIKD’s Terms of Service, including the FAQ’s and the prominent disclaimers in the Terms of Service, I find that the materials do not constitute legal advice, and do not represent that Respondents are attorneys or competent to handle legal matters. TIKD provides a service and its customers pay for the convenience

the service offers. No reasonable person could conclude, based on the evidence submitted to the Referee, that TIKD or Riley hold themselves out as providers of legal services.”

“Based on the above Findings of Fact and Conclusions of Law, the Referee recommends that the Supreme Court of Florida dismiss all claims alleged against Respondents with prejudice, enter judgment in favor of Respondents.”

TIKD also filed a lawsuit against The Florida Bar in the U.S. Federal Court, Southern District of Florida, alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  That case has been settled.

The Florida UPL matter will now be reviewed by the Supreme Court of Florida and the Court will issue an opinion after the March 4, 2020 oral argument.

Bottom line:  The TIKD business model implicates the traditional and longstanding prohibitions against the unlicensed practice of law and lawyers splitting fees with non-lawyers.  The referee did not agree that the model constituted UPL or fee splitting we will see what the Florida Supreme Court says after the March 4, 2020 oral argument.  I will be watching it.

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 Florida Bar, Florida Bar TIKD antitrust lawsuit, Florida Bar v. TIKD - Florida Supreme Court oral argument, Florida Bar v. TIKD- referee report recommending dismissal of Bar UPL Petition, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, TIKD -Florida Bar UPL petition w Florida Supreme Court, TIKD UPL, TIKD UPL Bar request for Florida Supreme Court injunction, TIKD US DOJ Statement of Interest no Bar immunity, Uncategorized