Category Archives: Florida Lawyer Advertising opinions

Florida Bar Board of Governors finds that unrequested texts to prospective clients on specific matters are not prohibited solicitations

 

Hello everyone and welcome to this Ethics Alert which will discuss the recent and somewhat surprising decision of the Florida Bar’s Board of Governors to reverse Statewide Advertising Committee’s opinion that texts to prospective clients on specific matters would be solicitations in violation of the Bar rules.

As I previously reported in the June 8, 2015 Ethics Alert blog, the Florida Bar’s Standing Committee on Advertising issued an opinion in May 2015 stating  that text messages to a prospective client regarding a specific matter were prohibited and violated Rule 4-7.18 since text messages fall within the language of the rule’s prohibition against telephone communication and also since the proposal would likely violate the TCPA.

According to a recent Bar News article, The Florida Bar’s Board of Governors reversed the Advertising Committee’s opinion at its July 24, 2015 meeting 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 would 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 ignore the text.  The text must also disclose how the law firm got the recipient’s name.

The law firm which requested the advertising opinion stated that it will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if the recipient would pay for it under his or her mobile phone plan.  The decision passed with a voice vote with some dissenters.

Bottom line:  This is a somewhat surprising reversal of the Bar’s Statewide Advertising Committee’s opinion by the BOG that texts to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules; however, it opens the door for lawyers to use these types of communications.  Ahh…the advancements of the digital age.

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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Florida Bar Statewide Advertising Committee finds that texts to prospective clients on specific matters are prohibited solicitations

Hello everyone and welcome to this Ethics Alert which will discuss the recent decision of the Florida Bar’s Statewide Advertising Committee to reject a plan by a law firm to obtain cell telephone numbers and send texts to prospective clients on specific matters since the text messages would be solicitations in violation of the Bar advertising rules.

The issue of whether a text message to a prospective client regarding a specific matter was recently reviewed by the Florida Bar’s Standing Committee on Advertising at its May 12, 2015 meeting.  The issue was reviewed after a criminal defense firm requested authorization to send text messages to prospective clients and guidance on its plan to use a computer system to send text messages regarding the firm’s legal services to potential clients who were arrested.  The law firm argued that a telephone number for text messaging is the functional equivalent of an e-mail address which are permitted communications under the Florida Bar Rules.

Florida Bar Advertising Rule 4-7.18 states that (with exceptions) a lawyer may not solicit professional employment from a prospective client by telephone or other communication directed to a specific recipient.  The Telephone Consumer Protection Act (TCPA) also prohibits telephone solicitations and the use of automated telephone equipment to send SMS text message and faxes.

The law firm’s plan was to use a daily list provide by the county clerk to obtain e-mail addresses and mobile telephone numbers of individuals arrested the previous day.  This information would be entered into an automated system which would send text messages offering its legal services.  The firm stated that it would only send a text if an e-mail was unavailable and that there would be an “opt out” provision to allow the recipient to decline future communication.

The Florida Bar Advertising Department’s lawyers had voted unanimously that the proposed text messages were prohibited and violated Rule 4-7.18 since text messages fall within the language of the rule’s prohibition against telephone communication and also since the proposal would likely violate the TCPA.  The law firm appealed the decision to the Florida Bar’s Standing Committee on Advertising.  The Standing Advertising Committee voted 6-1 against the proposal.  The law firm requested review by the Florida Bar’s Board of Governors and the review has been scheduled for the Board’s July 2015.

Bottom line:  This is another example of analysis and application of new digital media to the Bar advertising rules.  In this case, The Florida Bar’s Statewide Advertising Committee decided that text messages to prospective clients on specific matters are not the same as e-mails and are solicitations in violation of the Bar’s advertising rules.  Expect more of these reviews and issues in the future and stay tuned for the decision of the Board of Governors on this one.

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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The Florida Bar’s Board of Governors approves guidelines for advertising past results which prohibit past results on billboards and TV and radio advertisements

Hello and welcome to this Ethics Alert which will discuss the Guidelines for Advertising Past Results which were approved by the Florida Bar’s Board of Governors (BOG) on December 13, 2013 (and revised on 1/17/14) as well as the decision of the Bar’s Standing Committee on Advertising to disapprove 15 and 30 second television advertisements which advertised past results at its January 23, 2014 meeting (as reported in the February 15, 2014 issue of The Florida Bar News).  The guidelines state that the Bar “generally will not approve” billboard and television and radio advertisements since they “do not lend themselves to effective communication” of the disclaimers that are required under the revised lawyer advertising rules.  The Bar guidelines for past results are on The Florida Bar’s website http://www.floridabar.org.

The Guidelines for Advertising Past Results were initially approved by the Bar’s Board of Governors at its December 13, 2013 meeting and, inter alia, restrict references to past results in billboards and other such display advertisements and television and radio advertisements.  The guidelines state:

Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results. Although the revised advertising rules permit lawyers to advertises past results with disclaimers and adequately explain the context, the guidelines state that these disclaimers may not be adequate when the advertisement is on a billboard or in a TV or radio spots. 

The Bar guidelines also state that any amount claimed to have gone to a client in an advertisement in an “acceptable” advertising medium must be the net amount and, if the client received a structured settlement, the amount must be the value in current dollars. The guidelines also state that, unless the advertising law firm can show an exception, any advertisement that includes a dollar amount award must have the following disclaimer: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result”.

            The guidelines for past results also state:  “An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2).  The following are examples of ads that would be a violation:

 

Advertising that the lawyer obtained a $1 million judgment without disclosing that the fees and costs exceeded the amount of the judgment or that the court issued a $500,000 remittitur.

 

Advertising that the lawyer obtained a $1 million judgment without disclosing that the defendant offered to settle for $2 million.

 

Advertising a success at trial without disclosing that the judgment was overturned on appeal.

 

Advertising a success percentage without disclosing material limitations on the types of cases accepted. (E.g., advertising a percentage of success in traffic ticket cases without disclosing that the percentage only includes minor infractions by first-time offenders.)

 

Advertisement by a criminal defense lawyer that an acquittal on one or more charges was obtained without disclosing that the client was convicted of other crimes in the same case.


The guidelines also state that lawyers cannot claim to have “won” in a case when there are opposing claims or mixed results or if the judgment amount was
substantially less than sought or less than a settlement offer:

 

Results should not be characterized as wins unless such a characterization is not debatable. The following are examples of ads that would be a violation:

 

Advertising a case as a win when there were opposing claims and mixed results.

                        Advertising a case as a win when the judgment was for substantially less than was sought or less than a settlement offer.

According to a February 15, 2014 Florida Bar News article, at its January 23, 2014 meeting, the Bar’s Standing Committee on Advertising (SAC) disapproved 15 and 30 second television advertisements proposed by an Orlando law firm and upheld the advertising staff’s finding that they did not comply.  The law firm’s lawyer claimed that the advertisements met the rule and guideline standards since they disclosed net award amounts to the clients and; therefore, accurately reflected the actual amounts received by clients.  The advertisements also had a written disclaimer: “Most cases result in a lower recovery.  It should not be assumed that your case will have as beneficial a result.”  The lawyer also stated that the rules as interpreted by the guidelines may be unconstitutional.  The SCA voted to find noncompliance because of its uncertainty on how to apply the guidelines and pending guidance from the BOG.

During the SCA’s discussion of the Orlando firm’s advertisements, Elizabeth Tarbert, Bar Advertising Counsel, reported that Bar staff, at the BOG’s direction, had reviewed several hundred advertisements which had been approved since the new Bar advertising rules went into effect which contained past results. Ms. Tarbert said that several hundred did not comply with the guidelines and the affected law firms would be notified.  

The article also states that when the BOG approved the guidelines, it decided that law firms with advertisements which were previously approved but did not meet the new guidelines would be given a reasonable amount of time to remove or change the advertisements.  According to the article, around 350 advertisements from about 70 different law firms previously approved by the Bar may no longer be allowed under new advertising guidelines.  The Bar is sending between 90 and 100 letters to lawyers or law firms who had submitted advertisements to the Bar under new advertising rules and were told either that the ads complied with the new rules or would comply if certain changes were made.

Bottom line:  The guidelines for past results were a response to complaints about lawyer billboards and TV and radio advertisement advertisements which contained statements from clients such as “my lawyer got me $$$$ (fill in the number)”.  The SCA applied the rules and guidelines and disapproved the advertisements but asked for further guidance.  Stay tuned for the continuing saga of the interpretation of, and challenges to, the 2013 revised Bar Advertising Rules…

            …and let’s 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 law firm files federal suit challenging constitutionality of The Florida Bar’s 2013 advertising rules, including LinkedIn and “objectively verifiable” requirements

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent federal lawsuit which was filed in the U.S. Northern District of Florida by the law firm of Searcy, Denney et al and their named partners challenging the constitutionality of the 2013 amended Florida Bar advertising rules.  The case style is Searcy Denney et al v. The Florida Bar et al.  The Complaint is here: http://guptabeck.com/wp-content/uploads/2013/12/Sercy-v-Fla-Bar-Cmplt.pdf.

The lawsuit was filed on or about December 10, 2013 against The Florida Bar in the United States District Court, Northern District of Florida alleging that certain of the Bar’s lawyer advertising rules are unconstitutional.  The lawsuit was filed because of the Bar’s application of the lawyer advertising rules to law firm websites and blogs along with the recent informal staff opinion addressing the listing law firm “specialties” on LinkedIn.com (which was recently revoked by the Bar’s Board of Governors).  The law firm and lawyer plaintiffs requested that the court to declare unconstitutional and enjoin enforcement of the requirement in Bar Rule 4-7.13 that statements in lawyer advertisements be “objectively verifiable” and the prohibition in Bar Rule 4-1.4 on a lawyer (or law firm) stating or implying that the lawyer specializes in or has expertise in an area of law such as on LinkedIn pages.

The lawsuit states as follows:  “According to the Bar, Searcy Denney’s website and blog violate a rule requiring statements to be ‘objectively verifiable’ because the websites express opinions on issues of public concern, including statements that the days ‘when we could trust big corporations … are over,’ that ‘(g)overnment regulation of … consumer safety has been lackadaisical at best,’ and that ‘when it comes to ‘tort reform’ there is a single winner: the insurance industry.’ The Bar also found garden-variety statements about the firm’s services and past cases to be ‘inherently misleading’ because the statements do not include all ‘pertinent’ facts of each case, while at the same time refusing the firm’s requests to clarify what facts the Bar considers pertinent. And it concluded that the firm’s pages on the social-media site LinkedIn.com violate several of the rules’ provisions because-among other things-LinkedIn automatically lists the firm’s ‘specialties’ and includes an unsolicited review posted by a former client.”

The lawsuit alleges that the cited advertising rules on their face and as applied by The Florida Bar violate the First Amendment of the U.S. Constitution and that the rules are void for vagueness under 42 U.S.C. § 1983.  The lawsuit requests that Rules 4-7.13 and 4-7.14 be declared unconstitutional and the Bar be enjoined from enforcing them and that the plaintiffs be awarded attorney’s fees, costs, and expenses under 42 U.S.C. § 1988.

Bottom line:  As I reported in my recent Ethics Alert blog, The Florida Bar’s Board of Governors (BOG) revoked the staff opinion on LinkedIn and authorized the Advertising Committee to draft an opinion addressing LinkedIn issues and approved guidelines for lawyers publishing past results.  The fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant and it will be interesting to see how this lawsuit proceeds in the federal court in the Northern District of Florida.  Stay tuned…

…and let’s 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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The Florida Bar’s Statewide Committee on Advertising has reversed in part and affirmed in part the recent Bar Staff Opinion on LinkedIn

Hello everyone and welcome to this update of my October 14, 2013 Ethics Alert which will discuss the decision of The Florida Bar Standing Committee on Advertising (SCA) today (October 29, 2013) regarding the 9/11/13 Florida Bar Advertising Staff Opinion.  That Staff Opinion states, inter alia, that Florida lawyers cannot list areas of practice on the LinkedIn “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The September 11, 2013 staff opinion is here:  http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pdf

I have received information today from Bar Ethics and Advertising Counsel Elizabeth Tarbert updating the SCA’s decisions at its meeting today, October 29, 2013 regarding the September 11, 2013 Staff Opinion on LinkedIn.

According to Ms. Tarbert, the SCA voted 3-1 to affirm the staff opinion that the firm may not list areas of practice under the header “specialties” even though the word “specialties” is chosen by LinkedIn and cannot be modified by the firm because the firm controls whether the firm adds areas under the listing, a law firm cannot be certified, and the areas listed are not areas of certification under Rule 4-7.14(a)(4) and 6-3.4(c).

The SCA voted 4-0 to reverse the staff opinion that a listing under “Top Skills and Expertise”  of wrongful death, personal injury litigation, medical malpractice, automobile accidents, product liability (together with a numeric indicator) violates Rule 4-7.14(a)(4), because the firm states that the information is posted solely by LinkedIn and the firm has no control over the posting.

The SCA voted 4-0 to reverse the staff opinion that a posting of a former firm employee requires the area of certification when indicating board certification under Rule 4-7.14(a)(4) because the firm states that LinkedIn is solely responsible for the appearance of the posting of part of a former firm employee’s profile on the firm’s LinkedIn page and the firm has no control over the posting and cannot modify it.

The SCA also voted to contact LinkedIn to inform LinkedIn of the problem created for Florida Bar members by LinkedIn choosing the terms “specialties” and “expertise” in parts of LinkedIn profiles without the entity having the ability to modify those terms, in light of Rule Regulating The Florida Bar 4-7.14(a)(4), and to request that LinkedIn change its method of operation to permit modification of those terms by individual entities when creating their profiles.

The SCA also voted 4-0 to request that the Board of Governors direct the committee to issue a formal advisory opinion on LinkedIn, including the “specialties” header, the endorsements feature that shows endorsements for “skills and expertise.”  If the Board of Governors approves the committee’s request to adopt a formal advisory opinion, a notice will be published in the bar News inviting comments by members of The Florida Bar in good standing in accordance with the Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation.

Bottom line:  This decision by the SCA reverses the advertising staff’s opinion and finds that a listing under “Top Skills and Expertise” does not violate Rule 4-7.14(a)(4) and that a posting of a former firm employee requires that does not have the area of certification when indicating board certification does not violate Rule 4-7.14(a)(4); however, it affirms the staff’s opinion that a law firm may not list areas of practice under the header “specialties” even though the word “specialties” is chosen by LinkedIn and cannot be modified by the firm.  In addition, the SCA voted to contact LinkedIn and inform that entity of the problems created for lawyers and also to ask the BOG to request the SCA to issue a formal opinion on the subject.  This appears to be a step in the right direction and I will keep everyone posted when I receive additional information.

Let’s 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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

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The Florida Bar’s Statewide Committee on Advertising has deferred consideration of informal opinion on Linkedin “Skills and Expertise” page until 10/29/13

Hello everyone and happy Columbus Day to you. This is an update of my 9/24/13 Ethics Alert blog which discussed September 11, 2013 Florida Bar Advertising Staff Opinion which states that Florida lawyers cannot list areas of practice on Linkedin.com “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The September 11, 2013 staff opinion is here:  http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pd

I was advised by the Ethics and Advertising Counsel for The Florida Bar today that the SCA was unable to consider the staff opinion at its October 8, 2013; however, the committee plans to consider the opinion at its meeting on October 29, 2013.  I will keep everyone advised.

Bottom line:  As I stated in my previous Ethics Alert, the staff opinion is not binding and is intended to provide guidance to lawyers; however, lawyers must be aware that The Florida Bar has taken this position.  This is clearly an important issue that must be addressed by The Florida Bar and the Bar’s Statewide Committee on Advertising will be considering the issue to potentially draft a formal advertising opinion at its next meeting on October 8, 2013.  If you would like to provide your comments to the Statewide Committee on Advertising, you can send them to Elizabeth Tarbert, the Ethics and Advertising Counsel for The Florida Bar who oversees the SCA, or you can attend the meeting and ask to be heard.

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) 799-1670jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar Staff Opinion states that Florida lawyers are prohibited from listing areas of practice on Linkedin.com “Skills and Expertise” page unless certified in those areas

Hello and welcome to this Ethics Alert blog which will discuss the September 11, 2013 Florida Bar Advertising Staff Opinion which states that Florida lawyers cannot list areas of practice on Linkedin.com “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The staff opinion is here: http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pdf    

As you most likely already know if you are a member of Linkedin.com, Linkedin.com lawyers can be endorsed for their “Skills and Expertise” on a separate page.  As you might also know, the endorsements can come from anyone and can be for multiple areas of practice.  One of the questions that I have been asked is whether a lawyer is permitted to accept an endorsement for “Skills and Expertise” when that lawyer is not Board Certified (or the equivalent under the Bar Rules).  I have responded that I believed that the Bar would have an issue with such endorsements and would state that the endorsements would violate the Bar Rules unless the lawyer was certified in the area in which he or she was endorsed.

 

Cynthia Booth, a staff advertising counsel for The Florida Bar’s Ethics and Advertising Department recently rendered a Staff Opinion stating that such endorsements for “Skills and Expertise” are prohibited unless the lawyer is certified in that area of practice.  The opinion states:

“A lawyer can only state or imply that the lawyer is ‘certified’, a ‘specialist’, or an ‘expert’ if the lawyer is certified by The Florida Bar, by a certification program accredited by the American Bar Association, or by a state bar with certification standards comparable to those of The Florida Bar.  Rule 4-7-14(a)(4).  Certification is specific to individual lawyers; a law firm cannot be certified, and cannot claim specialization or expertise in an area of practice.  Rule 6-3.4(c).  Based on these rules, it is staff’s position that you may not list your areas of practice under the header “Skills and Expertise” as you are not board certified.  While Rule 4-7.14(b) permits an attorney to use language that is potentially misleading if the advertisement contains information or statements that adequately clarify the potentially misleading issue, it is staff’s position that providing language in the Linkedin profile indicating that you are not board certified and not an expert will not remedy this issues.  I have included a copy of New York State Bar Association Opinion 972 which reaches a similar conclusion.”

Bottom line:  This staff opinion is not binding and is intended to provide guidance to lawyers; however, lawyers must be aware that The Florida Bar has taken this position in the recent staff opinion.  This is clearly an important issue that must be addressed by The Florida Bar and the Bar’s Statewide Committee on Advertising will be considering the issue to potentially draft a formal advertising opinion at its next meeting on October 8, 2013.  If you would like to provide your comments to the Statewide Committee on Advertising, you can send them to Elizabeth Tarbert, the Ethics and Advertising Counsel for The Florida Bar who oversees the committee, or you can attend the meeting and ask to be heard.

Let’s 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

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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