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Florida Bar Board of Governors approves Ethics Opinion addressing lawyer fee arrangements with qualifying providers

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar Board of Governor’s (BOG) unanimous approval of Ethics Advisory Opinion 18-1 addressing fee arrangements between qualifying providers and participating lawyers to comply with amended Florida Bar Rule 4-7.22, which substantially revises the requirements for qualifying providers.  Ethics Opinion 18-1 is here: https://www-media.floridabar.org/uploads/2018/10/Proposed-Advisory-Op-18-1-website-10-12-18.pdf

At its December 14, 2018 meeting in Naples, the BOG approved Advisory Ethics Opinion 18-1, “Payments to Qualifying Providers/Lawyer Referral Services.” regarding for-profit qualifying providers, previously known as lawyer referral services, and related payment methods.  The BOG approved the Ethics Opinion unanimously without debate.

Under amended Bar Rule 4-7.22, which became effective in April 2018, a qualifying provider is, “any person, group, or persons, associations, organizations, or entities that receive any benefit or consideration, monetary or otherwise, for the direct or indirect referral of respective clients to the lawyers or law firm.”

The Comment to Rule 4-7.22 states:

“A lawyer may not participate with a qualifying provider that receives any legal fee that constitutes a division of legal fees with a non-lawyer unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to Chapter 8 of these rules,” the comment states. “A fee calculated as a percentage of the fee received by a lawyer, or based on the success or perceived value of the case, would be an improper division of legal fees…(a)dditionally, a fee that constitutes an improper division of fees occurs when the qualifying provider directs, regulates, or influences the lawyer’s professional judgement in rendering legal services to the client.”

Ethics Advisory Opinion 18-1 lists the following factors which “mitigate in favor of a conclusion that the charge is permissible”:

  1. The charge is reasonably based on the qualifying provider’s costs for marketing and administration plus a reasonable profit; and
  2. the charge is imposed regardless of whether the lawyer is hired by the prospective client.

The opinion lists the following factors which would “mitigate in favor of a conclusion that the charge is impermissible”:

  1. The charge is based on the perceived value of the individual matter.
  2. The qualifying provider collects the lawyers’ fees directly from the consumer, takes a portion of the fee as the charge for the referral or match, then remits the remainder to the lawyer.
  3. The qualifying provider interferes with the lawyer’s independent professional judgment in representing clients or directs the lawyer’s activities in representing clients.
  4. There is sufficient incentive for the qualifying provider to improperly solicit prospective clients or improperly market the service.

The opinion states that: “the board believes the following would be permissible:”

  1. A reasonable, pre-arranged fixed charge per time period such as weekly, monthly, or yearly;
  2. A reasonable, pre-arranged fixed charge for each time a consumer views information about a specific lawyer, commonly referred to as “pay-per-click.”
  3. A reasonable, pre-arranged fixed charge per matter referred to the lawyer that is not contingent on the outcome of the matter and does not vary based on the amount at issue in the matter.
  4. A reasonable, pre-arranged fixed charge per matter referred to the lawyer that varies based on the type of matter only if the varying charge is based on demonstrably different marketing and administrative costs rather than the perceived value of the case.

The opinion states that: “the board believes the following would generally be impermissible”:

  1. A charge calculated as a percentage of the fee received by a lawyer.
  2. A charge calculated as a percentage of the client’s recovery in the matter.
  3. A charge based on the perceived value of the case referred to or accepted by a participating lawyer.
  4. A flat charge that differs based on the perceived value of the case referred to or accepted by a participating lawyer.
  5. A flat charge per case accepted by a participating lawyer.
  6. A flat charge per case accepted by a participating lawyer that differs based on the type of matter (e.g., personal injury versus family law).

The opinion states that it is designed solely to address what constitutes impermissible fee splitting, and that lawyers should not “assume that a lawyer may participate with a particular qualifying provider solely because the qualifying provider’s method of charging for its services falls within one of the methods the board concludes generally would be found to be permissible.”

Bottom line:  The Ethics Opinion identifies various fee arrangements between lawyers and qualifying providers which may or may not comply with the new rule.  Any lawyers who participate in (or are considering participating in) referrals from a private entity should carefully review this ethics opinion and the amended rule, since lawyers can be disciplined if the referral service (qualifying provider) fails to comply with the Florida Bar rules.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2018 Florida lawyer referral qualifying provider rule revisions, 2018 Florida lawyer referral service matching service rule revisions, Attorney Ethics, Florida Bar, Florida Bar 2016 Lawyer referral rule revisions, Florida Bar Ethics Opinion 18-1 lawyer referral qualifying provider fees, Florida Bar ethics opinion qualifying provider- lawyer fees, Florida Bar lawyer referral rule revisions, Florida Bar matching services, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Referral Services

Florida Supreme Court approves amended rule permitting lawyers to charge clients for actual merchant credit costs

Hello everyone and welcome to this Ethics Alert, which will discuss the recent (1/4/19) Florida Supreme Court opinion approving a revision to Florida Bar Rule 4-1.5(h), which will permit lawyers to charge a client the actual cost of accepting a credit payment. The amended rule(s) become effective March 5, 2019.

The Florida Supreme Court issued the opinion after The Florida Bar filed an omnibus petition proposing amendments to various Rules Regulating The Florida Bar.  The opinion approved the proposed amendment to Bar Rule 4-1.5(h) as follows:

“to replace the provision that “[n]o higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in a credit plan” with a statement that “[l]awyers may charge clients the actual charge the credit plan imposes on the lawyer for the client’s transaction.” By so doing, we hereby allow lawyers to pass on the actual costs resulting directly from a client’s choice to pay a bill or invoice with a credit card, or make payments under a credit plan, to that client.”

Bottom line:  When it becomes effective on March 5, 2019, Florida Bar Rule 4-1.5(h) will permit lawyers to charge the client the actual credit merchant charges.  This reverses the prior rule, which specifically prohibited charging the client for such merchant costs.

Be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

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, Florida Bar, Florida Bar rule permitting lawyers to charge clients with credit card merchant fees, Florida Bar rule permitting lawyers to charge credit card fees to clients, Florida Lawyers charging clients with merchant credit card charges, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer charging credit card fees to client

Louisiana Supreme Court disbars former Assistant U.S. Attorney for making anonymous improper internet comments

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary opinion which disbarred a former Assistant U.S. Attorney for making numerous anonymous improper and inflammatory comments on the internet related to pending criminal cases.  The disciplinary case is: Supreme Court of Louisiana v. In Re: Salvador R. Perricone, NO. 2018-B-1233 (12/5/18) and the link to the case is here:  https://www.ladb.org/DR/Default.aspx?DocID=9113&TAB=SC

According to the opinion, the underlying facts in the case were mostly undisputed.  The lawyer began employment as an Assistant United States Attorney with the U.S. Attorney’s Office for the Eastern District of Louisiana in 1991. At all times relevant to these proceedings, the lawyer was a Senior Litigation Counsel and the USAO’s training officer.

During the time period of the allegations in the Complaint, The New Orleans Times-Picayune newspaper maintained an Internet website called nola.com which permitted readers to post comments to news stories using pseudonyms and anonymous identities.

Beginning in November 2007 through March 14, 2012, the lawyer posted numerous comments on various subjects on nola.com, including statements about pending criminal cases to which he and other prosecutors were assigned. “Of the more than 2,600 comments respondent posted, between one hundred and two hundred – less than one percent – related to matters being prosecuted by (the U.S. Attorney’s Office). None of the comments identified respondent by name or as an employee of the USAO. Rather, respondent posted on nola.com using at least five online identities: ‘campstblue’, ‘legacyusa’, ‘dramatis personae’, “Henry L. Mencken1951’, and ‘fed up.’”

The anonymous comments included, inter alia, statements such as:

“Heebe’s (the defendant) goose is cooked.”

“I read the indictment…there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!”

“Looks like Fazzio got a lemon. That book you refer to Mr. Rioux is about all of his losses. The guy is a clown and Fazzio is going down.”

The allegations were reported to the presiding judge who found the lawyer’s conduct improper and reversed the criminal convictions against the defendants and ordered a new trial.  The judge also found that the lawyer “viewed posting of highly-opinionated comments as a ‘public service.”  A disciplinary complaint was opened against the lawyer and, after disciplinary proceedings were completed, the Louisiana Disciplinary Board recommended that the lawyer be found guilty of the Bar Rule violations and disbarred.

The Louisiana Supreme Court opinion rejected post-traumatic stress as mitigation and stated that “the focus of the inquiry in the instant case is on the second factor – namely, whether respondent’s PTSD caused the misconduct at issue. Based on our review of the record, we find no clear and convincing support for the conclusion that respondent’s mental condition may have caused his misconduct.”  After reviewing aggravating and mitigating factors and case law, the opinion further stated:

“In this age of social media, it is important for all attorneys to bear in mind that “[t]he vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1058 (1991). As the Court in Gentile wisely explained, “[a] profession which takes just pride in these traditions may consider them disserved if lawyers use their skills and insight to make untested allegations in the press instead of in the courtroom.” Id. Respondent’s conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.

In summary, considering respondent’s position of public trust as a prosecutor, his knowing and intentional decision to post these comments despite his acknowledgment that it was improper to do so, and the serious harm respondent’s conduct has caused both to individual litigants and to the legal profession as a whole, we must conclude he has failed to comply with the high ethical standards we require of lawyers who are granted the privilege to practice law in this state. The only appropriate sanction under these facts is disbarment.”

Bottom line:  This is another disciplinary case involving a criminal prosecutor improperly using the internet, this time it is a federal prosecutor who made biased and inflammatory comments.  The Louisiana Supreme Court (and other courts) have made it very clear that it will not tolerate lawyers, especially those in a position of “public trust”, who anonymously (or otherwise) make biased, improper, and inflammatory comments on the internet.

Be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers. 

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, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer inflammatory comments on internet about pending cases disbarment, Lawyer misconduct improper social media access, Lawyer sanctions, lawyer suspension social media misconduct, Lawyers and social media, Prosecutor disbarred for inflammatory anonymous comments on pending cases, Prosecutor misconduct discipline, Prosecutorial misconduct ethics

Florida Bar Board of Governors Ethics Committee will reconsider proposed revised Bar rules to prohibit misleading digital advertising

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar Board of Governors’ (BOG) Professional Ethics Committee’s review of a proposal to amend Florida Bar Rule 4-7.13 to prohibit certain misleading digital advertisements at its December 2018 meeting.  A December 1, 2018 Florida Bar News article on the topic is here:  https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2Faac68d1f3167d80a85258347004f574f

The BOG Review Committee on Professional Ethics has scheduled a review of proposed Florida Bar Rule 4-7.13 revisions to address a common digital advertising practice known as search engine optimization offered by Google AdWords which allows an advertiser to use a competitor’s name to drive search engine traffic to the advertiser’s website.

The BOG ethics committee previously narrowly voted down a proposal to add Bar Rule 4-7.13(c) at its June 2018 meeting which would have stated that “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.”

The proposed rule to be reviewed by the BOG ethics committee contains an alternative proposal that would prohibit  advertisements from stating or implying that a lawyer is affiliated with the advertising lawyer or law firm in a way that misleads a person searching either for a particular lawyer or law firm or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

The proposed rule revision is below with the new language in italics.

RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING ADVERTISEMENTS

(b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain:

(11) a statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

Bottom line:  This proposed revised advertisement rule revision would address a common digital advertising practice known as search engine optimization offered by Google AdWords which allows an advertiser to use a competitor’s name to drive search engine traffic to the advertiser’s website, which has been alleged to be a violation of the Florida Bar Rules.

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 rules deceptive and misleading advertisements Google AdWords, Florida Bar, Florida Bar rule using GoogleAds words to misdirect to another firm, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer misrepresentation, Lawyer using GoogleAd words to misdirect users, Lawyer websites deceptive and misleading practices for SEO, misleading advertisement

ABA Formal Opinion 484 provides guidance when a client may need third party legal fee financing

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 484, which addresses third party financing of the lawyer’s fees and concludes that a lawyer may refer a client to a fee financing companies even if the lawyer owns a financial interest in the lender or broker if the lawyer complies with ethical obligations, including fairness and full disclosure.  ABA Formal Opinion 484 is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_484.pdf

American Bar Association Formal Opinion 484, which was released on November 27, 2018, concludes that lawyers may refer clients to fee financing companies even if the lawyer owns a financial interest in the lender or broker with certain caveats and requirements.

The opinion outlines the various ways that fee financing services are being used, including a client’s direct application for a loan from a financing company to cover the lawyer’s fees, which the client then pays back to the lender with interest rates between 5 and 15 percent. In another situation, the lawyer pays an initial fee to a finance company in order to submit loan applications from clients and, if the client receives the loan, the lawyer receives the funds minus a 10 percent financing fee.  In a similar arrangement, the lawyer assists a client to set up what is amounts to a retainer or voucher for the fees through a lender minus a service charge.

In other situations, the funds loaned to the client may go directly to the client and the lawyer is notified, sometimes through an online portal a service, for which the lawyer pays. There are also “same as cash” programs, where the lawyer helps the client apply for the loan and, if a loan is made, the financial relationship remains between the lender and the client.  Finally, a lawyer may work with a financial brokerage company that helps find legal fee financing options.

In the above arrangements, the attorney making the referral does not have an ownership or financial interest in the lender or broker and must explain the arrangement so the client can make an informed decision.  The opinion states that these arrangements are permissible only if other Model Rules of Professional Conduct are met, including: Model Rule 1.2(c) (Scope of Representation and Allocation of Authority Between Client and Lawyer); Model Rule 1.4(b) (Communications); Model Rule 1.5(a) and (b) (Fees); Model Rule 1.6 (Confidentiality of Information); Model Rule 1.7(a)(2) (Conflict of Interest: Current Clients); and Model Rule 1.9(a) (Duties to Former Clients).

In a footnote, the opinion refers to Florida Bar Ethics Opinion 16-2 and states that this opinion “reason(ed) that legal fee financing is not impermissible fee sharing because it is a form of credit plan and Florida ethics rules permit lawyers to accept payments through credit plans, which include credit cards.”  That opinion specifically addressed the fees of a criminal defense lawyer.  Florida Bar Ethics Op. 16-2 is here:  https://www.floridabar.org/etopinions/etopinion-16-2/

The opinion only addresses situations where a lawyer is being paid from funds that a client borrowed and does not address a nonrecourse cash advance to a litigant in exchange for a percentage of the judgement or settlement.  According to the opinion, if a lawyer recommends a fee financing or brokerage company in which the lawyer has an ownership or financial stake, the lawyer must disclose the relationship, ensure fair and reasonable terms, advise the client to seek independent legal advice on the transaction, and obtain the client’s  written informed consent.

The ABA formal opinion further states that if a lawyer charges a higher fee to account for any transactional costs or subscription fees the lawyer must pay the lender, that fee must be reasonable and disclosed to the client. Additionally, the opinion cautioned that lawyers should not “recommend the finance company or broker to the client even though fee financing is not in the client’s interests because the client’s arrangement of financing best assures payment or timely payment of the lawyer’s fee.”

“Finally, although not among the fee financing scenarios of which the Committee has been made aware, it is conceivable that a lawyer might acquire an ownership or other financial interest in a finance company or brokerage, or wish to form such a business. If a lawyer did so and referred a client to that entity, the lawyer would be entering into a business transaction with the client or would be acquiring a security or pecuniary interest adverse to the client, or both. In those situations, the lawyer would need to comply with Model Rule 1.8(a) (which is substantially the same as Florida Bar Rule 4-1.8(a).”

Bottom line:  This ABA opinion sets forth the lawyer’s obligations related to third party financing of the lawyer’s fees and concludes that a lawyer may refer a client to a fee financing company even if the lawyer owns a financial interest in the lender or broker if the lawyer complies with all ethical obligations.

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 ABA Formal Opinion 484 third party financing of attorneys fees, ABA formal opinions, ABA Model Rules, Attorney Ethics, Florida Bar Ethics Opinion 16-2- legal fee and other third party financing, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism

Florida Supreme Court opinion finds that social media friendship with lawyer alone is not sufficient to disqualify judge

Hello everyone and welcome to this Ethics Alert which will discuss the recent (11/15/18) Florida Supreme Court opinion which found that social media friendship with a lawyer, standing alone, is not sufficient to disqualify a judge.  The case is Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, No. SC17-1848 (Fla. November 15, 2018) and the opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc17-1848.pdf

In the split opinion, the Florida Supreme Court resolved a conflict between Florida Districts Courts of Appeal as to whether a judge must be disqualified if he or she is a “Facebook friend” with a lawyer appearing before the judge. The Third and Fifth Districts had held that social media friendship alone was not a sufficient basis to disqualify a judge.

The Fourth District, however, held that recusal is required when a judge is a Facebook “friend” with a criminal prosecutor.  The opinion discussed the previously held principle of Florida law that a “traditional friendship” between a judge and an attorney, without more, is not sufficient to disqualify a judge and extended that principle to social media friendships, finding that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”  The opinion did caution that “particular friendship relationships may present such circumstances requiring disqualification.”

According to the opinion, the states of Arizona, Kentucky, Maryland, Missouri, New Mexico, New York, Ohio, South Carolina, and Utah have also found that a social media friendship between a judge and an attorney appearing before the judge standing alone, is not sufficient to disqualify the judge; however, a “minority” of states have found that social media friendships between judges and attorneys create an “appearance of impropriety” and may be prohibited.  The opinion lists the states of California, Connecticut, Massachusetts, and Oklahoma as taking this position, along with Florida Judicial Ethics Advisory Opinion 2009-20 (which may now be withdrawn or revised).

The opinion concluded:

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification.

Bottom line:  This Florida Supreme Court opinion (which was a split 4-3 decision) concludes that Florida judges are not subject to disqualification merely for being a “friend” of a lawyer on social media (specifically Facebook); however, there may be additional factual circumstances which may require disqualification.

Be careful out there.

Disclaimer:  this Ethics Alert 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

 

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Filed under Attorney Ethics, Florida Bar, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, Florida Supreme Court opinion- Judge Facebook friends with lawyer not prohibited, joe corsmeier, Judge disqualification- Facebook friends with lawyer, Judges and lawyer friends on Facebook, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics Facebook