Category Archives: Lawyer Advertising opinion

California Ethics Opinion addresses ethics issues related to lawyer blogging and advertising and provides guidelines

Hello everyone and welcome to this Ethics Alert which will discuss the recent California Formal Ethics Opinion which addresses ethics issues related to lawyer blogging and advertising and provides guidelines for lawyers who blog.  The Opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2016-196 and the ethics opinion is here: Cal. Formal Opinion No. 2016-196

The opinion reviews the application of advertising rules to attorney blogging and when blogging by an attorney considered a “communication” under the California Bar Rules and the provisions of California Business and Professions Code which regulate attorney advertising.  The California rules prohibit false or deceptive “communications” which confuse, deceive or mislead the public (as do most, if not all Bar rules throughout the U.S.)  This proscription applies to both affirmative statements and/or to omissions necessary to make a statement not misleading.

The opinion discusses U.S. Constitution First Amendment principles, including the fact that lawyer advertising is protected commercial speech, and truthful lawyer advertising cannot be absolutely prohibited; however, it can be subject to reasonable regulation and restrictions.  In addition, communications for publication by lawyers that are primarily informational and educational have long been considered to be core political speech and protected under the First Amendment, and such speech can be restricted only under extraordinary circumstances.

The First Amendment protections apply even if the lawyer also hopes, as a partial motive, to use the informational and educational communications to increase his or her legal business; however, commercial motivation is only one factor to be considered.  The key questions are whether a blog is a message or offer (1) made by or on behalf of a California attorney; (2) concerns the attorney’s availability for professional employment; and; (3) is directed to a former, present or prospective client.  Since all blogs will meet factors 1 and 3, the important question is whether the blog concerns the attorney’s availability for professional employment under question 2.

The opinion discusses Cal. Formal Opinion 2012-186, which analyzes the application of California advertising rules to attorney social media posts, and found that a post which has words of offer or invitation relating to representation is a “communication’; however, if a post is only informational in nature, it is not a communication. The opinion concluded that this same analysis applies to lawyer blogs.

The opinion also discusses Cal. Formal Opinion 2001-155, which found that, even without specific words of invitation or offer, a website that included information such as a detailed listing of services, qualifications, backgrounds, and other attributes of the attorney or law firm, with their distribution to the public, could carry a “clear implication” of availability for employment, and would therefore be a “communication” subject to advertising  regulation. The opinion concluded that the same analysis applies to lawyer blogs.

The opinion states that a listing of all of an attorney’s cases and outcomes, without comment, could be considered informational and not a “communication”; however, a communication with the result of a specific case or cases without providing information related to the facts and/or law giving rise to the result, would be presumed to be false, misleading or deceptive, and could be a prohibited “guarantee, warranty or prediction regarding the result of representation.” The opinion stated that even a numbered listing of “wins” might be misleading without clarification about what is considered a “win.”  The use of disclaimers may (but will not necessarily) overcome a presumption of violation.

Bottom line:  Lawyer blogging has become a very popular and somewhat ubiquitous form of legal communication and is often recommended to lawyers as a business strategy.  This recent California Bar ethics opinion provides solid guidance to lawyers who are blogging or plan to blog to attempt to insure compliance with the Bar rules, regardless of whether the lawyer is in California or another state.  If a lawyer blogs, each blog should primarily informational and educational to potentially avoid the application of Bar advertising rules (like this one).

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

Leave a comment

Filed under ABA formal opinions, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising past results, Lawyer advertising promising results, Lawyer advertising rules, lawyer blogs, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics opinions blogs and advertising, Lawyers and social media

California interim ethics opinion addresses when lawyer blogging is subject to regulation under Bar Rules

Hello everyone and welcome to this Ethics Alert which will discuss lawyer blogging and the interim opinion of the State Bar of California which addresses the topic of lawyer blogging and when lawyer blogs may be subject to regulation under the California Bar Rules and advertising statute.  The interim ethics opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion Interim No. 12-0006 and the opinion is here:  Cal Bar Opinion Interim No. 12-006- lawyer blogging.  The comment period on the interim opinion has expired; however, the opinion has not been finalized.

The interim opinion frames the issue: “Under what circumstances is ‘blogging’ by an attorney a ‘communication’ subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising?”

The interim opinion’s digest section states:

  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both. (emphasis supplied)
  1. A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
  1. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  1. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.

In the discussion section, the opinion recognizes that “(b)y its nature, blogging raises First Amendment free speech issues. Prohibited for most of the 20th Century, advertising by attorneys was found to be protected commercial speech by the U.S. Supreme Court in Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691].  Bates provides that truthful attorney advertising cannot be absolutely prohibited, but may be subject to reasonable restrictions.”

The opinion then provides four examples of attorney blogs and analyzes each of the hypothetical blogs regarding the application of the California Bar Rules and the California advertising statute and concludes that:

“A blog by an attorney will not be considered a ‘communication’ subject to rule 1-400 or an “advertisement” subject to Business and Professions Code sections 6157, et seq., unless the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly, for example, through a detailed description of the attorney’s legal practice and successes in such a manner that the attorney’s availability for professional employment is evident.

A blog included on an attorney’s or law firm’s professional website is part of a ‘communication’ subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

A stand‐alone blog by an attorney on law‐related issues or developments within his or her practice area is not a ‘communication’ subject to the rules regulating attorney advertising unless it invites the reader to contact the attorney regarding the reader’s personal legal case, or otherwise expresses the attorney’s availability for professional employment.

A stand-alone blog on law-related issues maintained by an attorney that is not part of the attorney’s professional website is not ‘communication’ subject to attorney advertising regulations unless the blog indicates the attorney’s availability for professional employment.

A non-legal blog by an attorney is not a ‘communication’ subject to the rules or statutes regulating attorney advertising, even if it includes a hyperlink to the attorney’s professional web page or contains biographical or contact information. However, the biographical or contact information itself may be subject to the rules and statutes.”

The general consensus among the jurisdictions (including Florida) would appear to be that, if the lawyer’s blog is primarily educational and/or informational in nature and not primarily for obtaining employment, it is not subject to advertising regulation (see NYSBA Ethics Op. 967 (6/5/13) here: NYSBA Ethics Op. 967).

This California interim opinion states that: “”(b)logging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through a description of the attorney’s legal practices and successes in such a manner that the attorney’s availability for professional employment is evident.” (emphasis supplied).  The opinion does not address whether blogs which are primarily for educational and informational purposes are subject to regulation even if it also expresses the attorney’s availability for professional employment.

Bottom line:  Lawyer blogs are subject to state Bar regulations only to the extent that the regulations do not violate the lawyer’s federal constitutional First Amendment free (commercial) speech rights; however, lawyers who blog must research the requirements of their state advertising rules, ethics opinions, and other sources to insure compliance with those state regulations.  To the extent that those rules may violate the lawyer’s First Amendment free (commercial) speech rights, the lawyer could consider a constitutional challenge.

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

 

 

Leave a comment

Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer Advertising opinion, Lawyer advertising rules, lawyer blogs, Lawyer ethics, Lawyer ethics opinions

New York City Bar Association issues ethics opinion addressing LinkedIn profiles and New York attorney advertising rules

Hello and welcome to this Ethics Alert blog which will discuss the recent Formal Opinion of the Association of the Bar of the City of New York Committee on Professional Ethics which concluded that a lawyer’s LinkedIn profile is not subject to New York Bar advertising rules if it is not posted specifically for the purpose of attracting clients and the profile will be considered to be attorney advertising only if it meets all five of the criteria listed in the opinion.  The opinion is Formal Opinion 2015-7: Application of Attorney Advertising Rules to LinkedIn (December 2015) and the link to the opinion is here: http://www.nycbar.org/ethics/ethics-opinions-local/2015opinions/2350-formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin

According to the opinion, a New York lawyer’s LinkedIn profile or other content will be considered to be lawyer advertising only if it meets all five of the following criteria:

  • it is a communication made by or on behalf of the lawyer;
  • the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
  • the LinkedIn content relates to the legal services offered by the lawyer;
  • the LinkedIn content is intended to be viewed by potential new clients; and
  • the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.

The opinion further states that “(g)iven the numerous reasons that lawyers use LinkedIn, it should not be presumed that an attorney who posts information about herself on LinkedIn necessarily does so for the primary purpose of attracting paying clients. For example, including a list of ‘Skills’, a description of one’s practice areas, or displaying ‘Endorsements’ or ‘Recommendations’, without more, does not constitute attorney advertising.”

The opinion concludes that: “(i)f an attorney’s individual LinkedIn profile or other content meets the definition of attorney advertising, the attorney must comply with the requirements of Rules 7.1, 7.4 and 7.5, including, but not limited to: (1) labeling the LinkedIn content ‘Attorney Advertising’; (2) including the name, principal law office address and telephone number of the lawyer; (3) pre-approving any content posted on LinkedIn; (4) preserving a copy for at least one year; and (5) refraining from false, deceptive or misleading statements. These are only some of the requirements associated with attorney advertising. Before disseminating any advertisements, whether on social media or otherwise, the attorney should ensure that those advertisements comply with all requirements set forth in Article 7 of the New York Rules.

Bottom line:  According to this New York City ethics opinion, a LinkedIn profile will not be considered to be a lawyer advertisement unless certain conditions are met.  It is my opinion that most, if not all, other jurisdictions would agree with this analysis and opinion.  This opinion provides a good summary of the conditions which may cause a LinkedIn profile to become a lawyer  advertisement.

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

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Lawyer ethics opinions Linkedin.com, Lawyer social media ethics, Lawyers and social media

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

 

 

 

1 Comment

Filed under 2013 Florida comprehensive advertising rule revisions, Advertising and solicitation with text messages, Attorney Ethics, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer text messages- solicitation

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a comment

Filed under 2013 Florida comprehensive advertising rule revisions, Advertising and solicitation with text messages, Attorney Ethics, Communication with clients, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions

U.S. Third Circuit appeals court rejects New Jersey’s prohibition of lawyer’s website posts of excerpts of judicial opinions praising his legal work

Hello everyone and welcome to this Ethics Alert which will discuss the Third U.S. Circuit Court of Appeals opinion which reversed a federal district court opinion upholding a New Jersey guideline prohibiting a lawyer from posting judicial opinion excerpts praising his legal work. The opinion is Andrew Dwyer et al v. Cynthia A. Cappell et al, No. 13-3235 (U.S. Third Circuit Court of Appeal August 11, 2014) and the opinion is here: http://www2.ca3.uscourts.gov/opinarch/133235p.pdf
According to the opinion, the lawyer had posted multiple excerpts of unpublished and public judicial opinions related to fee applications in employment discrimination cases brought under the New Jersey Law Against Discrimination on his law firm website. One quote stated: ““The inescapable conclusion is . . . that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer. . . . Mr. Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved.”

A judge whose opinion quotes were posted on the lawyer’s website wrote to the lawyer in April 2008 and asked that the quotes be removed because he did not want his comments to be misconstrued as a blanket endorsement of the lawyer. The lawyer refused to remove any quotes and the New Jersey State Bar Association’s Committee on Attorney Advertising began examining the issue. The Committee and the New Jersey Bar Association ultimately produced Guideline 3, which was approved by the New Jersey Supreme Court in 2012. Guideline 3 stated that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The guideline did permit a lawyer to post the entire text of a judicial opinion on the website or in an advertisement.

The U.S. District Court upheld Guideline 3 in June 2013; however, before the Guideline was to become effective, the lawyer filed a lawsuit in federal court claiming that Guideline 3 violated his First Amendment rights to engage in truthful commercial speech. The district court found against the lawyer and found that the Guideline was a mere disclosure requirement and not a direct restriction on the lawyer’s speech. In making its ruling, the district court relied on the U.S. Supreme Court opinion in Zauderer v. Office of Disciplinary Counsel (1985), which stated that “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the state’s interest in preventing deception of consumers.”

The Third Circuit Court of Appeals unanimously reversed the district court’s opinion. The opinion confirmed that disclosure requirements receive less scrutiny than actual restrictions on speech and that the New Jersey Guideline had characteristics of both a disclosure requirement and a restriction on speech. The opinion did not address whether the Guideline was a restriction or a prohibition; however, it stated that even under the less restrictive standard of review for disclosure requirements, the Guideline was constitutionally flawed.

The appellate opinion stated that “Guideline 3 does not require disclosing anything that could reasonably remedy conceivable consumer deception stemming from (the lawyer’s) advertisement.” The opinion also listed an example of a disclosure that would be sufficient: “This is an excerpt of a judicial opinion from a specific legal dispute. It is not an endorsement of my abilities.” Since Guideline 3 required a lawyer to post entire judicial opinions, it “effectively precludes advertising with accurate excerpts from judicial opinions on (the lawyer’s) website, it is unduly burdensome.”

“Guideline 3 as applied to (the lawyer’s) accurate quotes from judicial opinions thus violates his First Amendment right to advertise his commercial services. Requiring (the lawyer) to reprint in full on his firm’s website the opinions noted above is not reasonably related to preventing consumer deception. To the extent the excerpts of these opinions could possibly mislead the public, that potential deception is not clarified by Guideline 3. In any event, what is required by the Guideline overly burdens (the lawyer’s) right to advertise. We thus reverse the order of the District Court and remand the case.

Bottom line: This is a significant First Amendment decision related to lawyer advertising which found that New Jersey Guideline 3, which prohibited a lawyer from publishing excerpts of judicial opinions on his website, was an unconstitutional restriction on the lawyer’s commercial speech. The opinion did approve of the use of a disclosure/disclaimer to prevent any consumer confusion related to the opinion excerpts.

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
http://www.jac-law.com

Leave a comment

Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising judicial opinion excerpts on website, Lawyer Advertising opinion, Lawyer ethics, Lawyer Ethics and Professionalism

Louisiana Supreme Court refuses to sanction a lawyer who claimed a non-existent specialization on a law firm website because of a lack of a “culpable state of mind”

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary case wherein the court refused to sanction a lawyer who claimed a non-existent specialization on his former law firm website because he did not have a “culpable state of mind” and the public was not harmed. The opinion is In re: Kearney Soniat Du Fossat Loughlin, Supreme Court of Louisiana Case No. 14-B-0923 (September 26, 2014) and is online here: http://www.lasc.org/opinions/2014/14B0923.pc.pdf.

According to the opinion, the lawyer created a website in 2007 to promote his law firm. The home page and the firm profile page had the following statement: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.” In 2009, the lawyer requested that the website be taken down for revisions because his wife, with whom he had been practicing, left the private practice of law.

In October 2011, during an investigation of an unrelated matter, the Louisiana Office of Disciplinary Counsel (“ODC”) accessed the firm profile page of the lawyer’s former website through a web search. After an investigation, a one count formal charge was filed against the lawyer, alleging violations of the Louisiana advertising rules by claiming that he “specialized” in maritime personal injury and death cases, even though that specialization was not recognized and/or approved by the Louisiana Board of Legal Specialization.

The lawyer denied the allegations and, after a hearing, the disciplinary hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases and recommended a reprimand and that the lawyer attend an advertising continuing education course, notwithstanding the fact that such specialization did not exist in Louisiana. The Louisiana disciplinary board approved the findings and recommendation of the committee.

The Court’s opinion reversed the recommended reprimand and imposed no sanction: “The record establishes respondent’s actions were not taken with a culpable mental state. It is also undisputed his actions caused no harm to the public. Considering these factors, we do not find respondent’s actions rise to the level of sanctionable misconduct. Therefore, we will dismiss the formal charges against respondent.”

Bottom line: This opinion clearly seems to indicate that, at least in Louisiana, the Bar must show that a lawyer had a “culpable state of mind” (not mere negligence) to prove a violation of the Bar Rule prohibiting a lawyer’s claim of specialization on a website; however, the fact that Louisiana has no specialization in “maritime personal injury and death cases “ could very well have been an important factor in this decision.

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
http://www.jac-law.com

Leave a comment

Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer discipline, Lawyer dismissal of Bar complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer websites