Category Archives: Lawyer advertising and solicitation

Florida Bar Board of Governors approves Bar rule revision prohibiting misleading law firm information in all advertisements

Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar Board of Governors (BOG) approval of revisions to Florida Bar Rules 4-7.13 which would prohibit misleading law firm information in advertisements.

The BOG unanimously approved the proposed rule revisions amending Florida Bar Rule 4-7.13 to prohibit misleading digital advertisements.  As I previously reported, the BOG ethics committee previously voted down a proposal to add Bar Rule 4-7.13(c) 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 revised Bar rule does not address purchasing a competitor’s name through Google AdWords but would prohibit all 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.

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.

The revised rule also includes a subsection (12) setting forth “Examples of Deceptive or Inherently Misleading Advertisements.”

(12)  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 knowingly contact a different lawyer or law firm.

The Florida Bar will now file a Petition including revised Rule 4-7.13 will now be filed with the Florida Supreme Court, which will review it and determine whether to implement the proposed rule.

Bottom line:  As I previously blogged, if the BOG takes final action on the proposed revised Rule 4-7.13 prohibiting all of these types of misleading advertisements (and if the Florida Supreme Court implements the revised rule), this would be consistent with other jurisdictions that have considered the issue.

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

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

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Filed under Attorney Ethics, Florida Bar, Florida Supreme Court, Lawyer advertising, Lawyer advertising and solicitation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer using GoogleAd words to misdirect users, Uncategorized

Florida Supreme Court approves revised Bar advertising rule with requirements for lawyers to call themselves “experts” or “specialists”

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion approving (with minor revisions) Bar Rule 4-7.14, which sets forth the requirements for Florida  lawyers to call themselves “experts” and “specialists”  in advertisements and other documents.  The case is In re: Amendments to Rule Regulating The Florida Bar 4-7.14., Case No. SC18-2019.  The June 27, 2019 Supreme Court of Florida opinion is here: https://www.floridasupremecourt.org/content/download/527989/5865891/file/sc18-2019.pdf.  The rule revisions become effective on August 26, 2019.

As I blogged previously here: https://jcorsmeier.wordpress.com/2015/10/02/federal-district-judge-enjoins-the-florida-bar-from-enforcing-rule-prohibiting-truthful-claims-of-expertise/, U.S. District Court Judge Robert Hinkle found in 2015 that non-certified lawyers could have the skills and experience of certified lawyers and held that the Florida Bar Rule restricting the use of “expert” and “specialist” to lawyers who were certified by The Florida Bar (or its equivalent) was unconstitutional and he enjoined the Bar from enforcing it.  The Florida Bar did not appeal.

The Florida Bar’s Board of Governors (BOG) imposed a moratorium on enforcing the rule as written and proposed rule amendments to comply with Judge Hinkle’s ruling; however, the Florida Supreme Court rejected them.  The BOG revised the proposed rule amendments and filed them in 2018.  The opinion approved the revised rule with minor revisions.

The revised Florida Bar Rule 4-7.14 states that lawyers may not claim to have specialization or expertise in an area of law unless they are certified by the Florida Bar, the American Bar Association, another Bar’s accredited plan, or “can objectively verify the claim based on the lawyer’s education, training, experience, or substantial involvement in the area of practice in which specialization or expertise is claimed.”  The Bar’s proposed draft rule stated “and substantial”; however, the court changed the “and” to “or”, which is an important revision.

In addition, a law firm may make that claim of expertise in an area of practice if it can show that at least one of its lawyers can meet those standards and if all firm lawyers cannot meet those standards, it must have a disclaimer that not all of its lawyers specialize or have expertise in that area of practice.  Revisions were also made to the rule comments stating that a lawyer who is “of counsel” to a law firm would permit the firm to claim specialization and expertise if the “of counsel” practices solely with that firm.

Bottom line: The revised Florida Bar rule has been in development since 2015 and the Supreme Court rejected a previous version of the proposed rule.  The rule will now permit lawyers to call themselves “experts” or “specialists” if they are certified by the Florida Bar, the American Bar Association, another Bar’s accredited plan,  if the lawyer “can objectively verify the claim based on the lawyer’s education, training, experience, or substantial involvement in the area of practice in which specialization or expertise is claimed.”

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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U.S. Sixth Circuit Court of Appeals strikes down Ohio law which prohibited solicitation of potential workers’ compensation claimants

Hello everyone and welcome to this Ethics Alert, which will discuss the recent United States Sixth Circuit Court of Appeals opinion which struck down an Ohio law which prohibited solicitation of potential workers’ compensation claimants as a violation of the First Amendment of the U.S. Constitution.  The case is Bevan & Associates v. Yost, Case No. 18-3262 (U.S. Sixth Circuit Court of Appeals) and the July 8, 2019 opinion is here: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0144p-06.pdf

The Ohio statute prohibited all solicitations to represent claimants or employers in workers’ compensation cases.  The statute states as follows: “No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the bureau or commission.” Ohio Rev. Code § 4123.88(A).

The Ohio statute had an exception permitting access to journalists and, according to the opinion, “Bevan hired Capital Publishing, a journalistic service, and Regina Mace, a former client and apparent journalist, to use the journalist exception to gain access to the Bureau’s claimant information. Bevan then combined the information it acquired from the journalists with information it had obtained from other outlets (including claimant information obtained from the Bureau prior to the 2006 amendments) to compile a list of individuals who would eventually receive direct mail advertisements. Bevan then sent advertisements to these potential customers.  The advertisements were addressed to ‘INJURED . . . WORKER’ and alerted the worker to the fact that they might be ‘entitled to an additional CASH AWARD for your injury that the Ohio Bureau of Workers Compensation (BWC) has not told you about!’ R. 38-2, Page ID 172–73. Bevan’s letters also included a disclaimer which stated that ‘This ADVERTISING MATERIAL is not intended to be a SOLICITATION under Ohio’s Rules governing lawyers, as it is unknown whether the recipient is in need of legal services.’”

The law firm filed the federal lawsuit after the journalist received a subpoena from an Ohio grand jury investigating a possible violation of the Ohio law.  Lawyers for the state of Ohio argued that the solicitation prohibition was part of a larger statutory structure restricting access to claimant address information from the state workers’ compensation bureau, which was adopted in 2006.

According to the opinion:  “(T)he First Amendment provides “protection, in pertinent part, against laws ‘abridging the freedom of speech.’ U.S. Const. amend. I. Although the First Amendment ‘accords a lesser protection to commercial speech than to other constitutionally guaranteed expression,’ Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), it nonetheless protects truthful commercial speech that is not related to unlawful activity, id. at 564.”

“Under the framework of Central Hudson, when analyzing regulation of commercial speech, we follow a four-part test. (1) The commercial speech must not be misleading nor relate to unlawful activity, for the First Amendment does not protect ‘commercial messages that do not accurately inform the public about lawful activity.’ Id. at 563–64. If this criterion is satisfied, the regulation can survive only if (2) the government can show a substantial interest in restricting the commercial speech, (3) the regulation at issue directly advances the governmental interest, and (4) the regulation is ‘designed carefully to achieve the State’s goal.’ Id. at 564.  A regulation is ‘designed carefully’ if it directly advances the asserted government interest and there is no more narrow regulation that might achieve the same goals. Id.”

The opinion held:  “Because Ohio’s interest in protecting claimant privacy cannot outweigh Bevan’s right to engage in commercial speech, and because § 4123.88(A) completely bars solicitation, the statute fails the Central Hudson test.”  The opinion further found that, even if the law firm had violated the Ohio law prohibiting access to claimant information, this would not be relevant to the issue of whether the blanket solicitation prohibition is constitutional since, on its face, the statute prohibits all solicitation of claimants, no matter how the information was obtained and, “(a)s written, this prohibition is repugnant to the free speech clause of the First Amendment.”

Bottom line:  This case is certainly consistent with other federal and U.S. Supreme Court decisions which prohibit states from enacting blanket prohibitions of direct solicitation of clients; however, the opinions do permit the states to place reasonable “time, place, and manner” restrictions on such activities, such as Florida’s 30 day restriction on solicitation of potential personal injury clients and other advertising disclosure/disclaimer requirements.

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 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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Four south Florida lawyers arrested for involvement for illegal personal injury solicitation and provider kickbacks

Hello everyone and welcome to this Ethics Alert which will discuss the recent arrests of four south Florida lawyers who are  alleged to have improperly and illegally obtained personal injury victims as clients and referred them to health care facilities which then paid them cash for the referrals.

According to media articles and criminal charging documents, four south Florida lawyers have been charged with crimes  ranging from money laundering to organized fraud and patient brokering.  The lawyers are Steven Slootsky, whose record Bar address is in Boca Raton, and Adam Hurtig, Mark Spatz, and Vincent Pravato, whose record Bar addresses are in Fort Lauderdale.  The lawyers were arrested on or about September 6, 2017.

The lawyers are alleged to have improperly and illegally obtained personal injury victims as clients and referred them to health care facilities which paid cash to the lawyers for the referrals.  According to arrest records, the lawyers allegedly paid runners from towing companies and body shops to improperly solicit victims of motor vehicle accidents.  Those individuals were allegedly then referred to clinics for medical treatment and the clinics would illegally pay for the referrals.

The arrest report states that the lawyers “were actively involved in illegal patient brokering and the unlawful solicitation of motor-vehicle accident victims throughout South Florida…after the patient was brokered to the health care facility, the facility was then able to begin treatment and bill the auto insurance companies for claims covered by the PIP benefits, which resulted in fraud on the insurance companies.”

It is illegal under federal law for a doctor, clinic, or other health care provider to pay for patient referrals and for a “patient broker” to receive kickbacks for sending patients to a health care provider.  It is also a violation of the Florida Bar Rules for an agent of a lawyer to improperly solicit a client, for a lawyer to pay non-lawyers and clinics for referrals, and for the lawyer to receive payment or a fee based upon an improper solicitation.  Of course, it is certainly a violation of the Florida Bar Rules to commit a crime.

Bottom line: I have heard anecdotally that these activities have been occurring in south Florida for many years (and potentially throughout our entire state, particularly in urban areas).  These lawyers are certainly presumed innocent unless and until they are proven guilty; however, if the allegations are shown to be true, this is an extremely unfortunate blight on the legal profession.  On the other hand, this could potentially discourage others from doing (or continuing to do) this in the future.

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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Virginia Supreme Court makes revisions to lawyer advertising rules which streamline the rules and reduce their number

Hello everyone and welcome to this Ethics Alert which will discuss the recent Virginia Supreme Court opinion which adopted revisions to the Virginia Bar Rules which streamline the lawyer advertising rules and reduce the number of rules.  The Virginia Supreme Court opinion is here: http://www.courts.state.va.us/courts/scv/amendments/part_6_sect_ii_para_7_1_thru_7_5.pdf.  The revised Virginia advertising rules become effective on July 1, 2017.

On April 17, 2017, the Virginia Supreme Court adopted lawyer advertising rules which streamline and reduce the number of rules and should make it easier for Virginia lawyers to market their services without risking disciplinary charges.  Virginia became the first jurisdiction to adopt the revisions recommended by the Association of Professional Responsibility Lawyers (APRL) and later adopted by the American Bar Association (ABA).

The revisions reduce Virginia Bar Rule 7.1 (communications concerning lawyer’s services) to a single paragraph prohibiting false or misleading communications.  The revisions also eliminate Rule 7.4 (communicating fields of practice and certification) and Rule 7.5 (lawyer and law firm names).  Those subjects are addressed in the comments to revised Rule 7.1.

Revised Rule 7.3 (solicitation) incorporates some new language from the APRL’s proposal, but does not incorporate the blanket prohibition against in-person solicitation which is set forth in ABA Model Rule 7.3 and APRL’s draft Rule 7.3.

Some of the rules were not revised or deleted.  Rule 7.3 still requires any advertising materials to have the disclaimer “ADVERTISING MATERIAL” unless the recipient is a lawyer or family member, has had a personal or prior professional relationship with the attorney, has had prior contact with the attorney, or if the materials are pursuant to a court-ordered class action notification.

Bottom line:  These revised Virginia Bar advertising rules substantially streamline and reduce the number of rules.  This appears to be a trend and we will see whether (or when) other jurisdictions follow.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising and solicitation APRL report, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Virginia revised and reduced advertising rules, Virginia streamlined advertising rules 2017

Florida Bar Board of Governors agrees with BOG Ethics and Bar Advertising Committees that “Results So Good, You’ll Think It’s Magic!” violates Bar Rules

Hello everyone and welcome to my first Ethics Alert of 2017 which will discuss the recent decision of the Florida Bar’s Board of Governors (BOG) to uphold the opinion of the Bar’s Standing Committee on Advertising (SCA) and the recommendation of the BOG Ethics Committee (BRCPE) that a law firm’s “Results So Good, You’ll Think It’s Magic!” slogan violates the Bar Rules.

According to an article in the January 1, 2017 issue of The Florida Bar News, the SCA had opined that the law firm’s proposed name: “Ticket Wizards”, and a slogan: “Results So Good, You’ll Think It’s Magic!” violated two Florida Bar advertising rules: 1) promising results to potential clients; and 2) characterizing the “skills, experience, reputation, or record” of the firm in a way that the firm could not objectively verify.

After the SCA found against the law firm, it appealed to the BOG.  The BOG considered the matter at its recent meeting in Clearwater and, by a 24-20 vote agreed with the BRCPE and denied the appeal; however, it found the name and the picture of a wizard did not characterize the firm’s experience, skills, reputation, or record.  The BRCPE had recommended that the firm should only be permitted to use the name and image if it could objectively show it is a “master or expert” in that area of practice.  The BOG voted that the law firm could use the name and image if it could objectively verify the implications of the title and picture.

With regard to the slogan “Results So Good, You’ll Think It’s Magic!,” the BOG agreed that the slogan can “reasonably be construed as a prediction of success” and, therefore, it violated the Bar rules. The BOG also found that the slogan violated the rule against characterizing a firm’s “skills, reputation, character, or record “unless it is objectively verifiable.

Bottom line: It appears that the lesson here is that lawyers are prohibited from promising magical results (unless perhaps they are magicians?)…

Happy New Year to you and yours 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

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