Category Archives: Lawyer advertising past results

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

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Florida Bar will not appeal Federal judge’s order enjoining enforcement of past results rule as applied by Bar guidelines

Hello everyone and welcome to this Ethics Alert with an update on the December 8, 2014 Federal Judge’s opinion which enjoined The Florida Bar from enforcing its guidelines regarding past results in attorney advertising in indoor and outdoor display, television and radio media as a violation of the First Amendment. The order/injunction is in the case of Robert Rubenstein v. The Florida Bar, Case No. 14-CIV-20786-BLOOM/Valle (U.S.S.D. Fla. 12/8/14).

As I reported in my 12/18/14 Ethics Alert blog, a Florida lawyer (Rubenstein) filed a federal lawsuit in the Southern District of Florida against The Florida Bar challenging the constitutionality of the Bar’s guidelines prohibiting the use of past results in lawyer advertising in indoor and outdoor display, television and radio media. The lawyer filed a motion for summary judgment and, in her Order/injunction dated December 8, 2014, Federal District Judge Beth Bloom granted a summary judgment in favor of the Florida lawyer and ruled that The Florida Bar rules prohibiting the use of past results in lawyer advertising as applied by the Bar’s guidelines were unconstitutional and violated the First Amendment of the U.S. Constitution.

In response to the federal District Judge’s order and injunction, the Bar’s Board of Governors repealed the guidelines on using past results in indoor and outdoor display, radio, and television advertising; however, the Board has indicated that such advertisements must still be objectively verifiable and make no material omissions.

According to a recent ABA online article: “’The bar will not appeal,’ says Barry Richard, a shareholder at Greenberg Traurig in Tallahassee who was lead attorney for the bar in Rubenstein. ‘The board of governors has repealed the rule that was at issue.’”

The ABA article also states: “Deepak Gupta, the founding principal of Gupta Beck in Washington, D.C., which represented Rubenstein, says, “This decision is likely to have a major national impact. It says to state bar regulators across the country: ‘Don’t try this at home. If you’re considering emulating Florida’s restrictive approach, you will face a First Amendment challenge and you will lose.'” The ABA article is here: http://www.abajournal.com/magazine/article/federal_court_strikes_down_florida_bar_restrictions_on_lawyers_citing_past

Bottom line: The Court’s Order/injunction and the Bar’s repeal of the application of the Bar rule in its guidelines for advertising past results is certainly a victory for the lawyer/plaintiff in this case and may leave the door open to other challenges to The Florida Bar’s advertising 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.
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 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising past results, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism

Federal District judge finds that Florida Bar rules prohibiting past results as applied by the Bar violate First Amendment and enjoins enforcement

Hello everyone and welcome to this Ethics Alert which will discuss the recent (12/8/14) Federal Southern District Judge’s opinion which granted summary judgment against The Florida Bar and enjoined the Bar from enforcing its guidelines regarding past results in attorney advertising in indoor and outdoor display, television and radio media as a violation of the First Amendment. The order/injunction is in the case of Robert Rubenstein v. The Florida Bar, Case No. 14-CIV-20786-BLOOM/Valle (SD Fla. 12/8/14). The order is here: http://www.lawpracticeadvisor.com/wp-content/uploads/2014/12/Rubenstein-v.-Florida-Bar.pdf.

As background, a Florida lawyer filed a federal lawsuit in the Southern District of Florida against The Florida Bar challenging the constitutionality of the guidelines which prohibited his use of past results and subsequently filed a motion for summary judgment. In an Order/injunction dated December 8, 2014, Federal Southern District Judge Beth Bloom granted summary judgment in favor of the Florida lawyer and ruled that the Florida Bar rules prohibiting the use of past results in lawyer advertising as applied by the Bar’s guidelines were unconstitutional and violated the First Amendment of the U.S. Constitution.

According to the Order/injunction, “Relying on the newly amended (2013 Bar) Rules, Plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. (citation omitted). The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. (citation omitted)”

“Plaintiffs’ advertisements include, for example, a television segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting the words ‘COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each case.’ (citation omitted). Critically, the Bar’s notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against ‘false and misleading” attorney advertising. (citation omitted)’

The Bar’s Board of Governors approved guidelines related to past results in early 2014 and the Bar subsequently sent notice to the plaintiff/lawyer in this case (as well as other Florida lawyers) which stated that their previously approved advertisements were in violation of the advertising rules and required the advertisements to be removed from the media.

The Order/injunction states “The Bar has presented no evidence to demonstrate that the restrictions it has imposed on the use of past results in attorney advertisement support the interests its Rules were designed to promote. The burden here is the Bar’s, and it has failed to meet it”.

The Order concludes that “The Bar has failed to demonstrate that the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines advance a substantial governmental interest, or that the those restrictions are not more extensive than necessary to serve that interest.” “The Bar is ENJOINED from enforcing Rules 4-7.13 and 4-7.14 as restated in the Guidelines to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.”

In response to the federal District Judge’s order and injunction, the Bar’s Board of Governors has repealed the guidelines on using past results in indoor and outdoor display, radio, and television advertising; however, the Board has indicated that such advertisements must still be objectively verifiable and make no material omissions.

Bottom line: This is certainly a (preliminary) victory for the lawyer/plaintiff in this case with regard to the Bar’s guidelines for advertising past results and the application of the Bar rule and it is not known at this time whether the Bar will appeal the Summary Judgment Order. Stayed 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.
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 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising past results, Lawyer ethics, Lawyer Ethics and Professionalism