Category Archives: Lawyer advertising rules

Florida Bar Board of Governors reverses advertising opinion and finds that solicitation rules apply to targeted social media

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG)  reversal of a Florida Bar advertising committee opinion that found that targeted social media advertisements were not subject to the solicitation rules.

The BOG voted at its January 2020 meeting to reverse an opinion by the Bar’s Standing Committee on Advertising related to a lawyer who wanted to use information that prospective class action members provided to social media platforms and target specific advertisements to their social media feeds.  The BOG’s Board Review Committee had previously voted 9-0 to recommend that the BOG reverse the Standing Committee on Advertising and find that these types of advertisements are direct solicitations and are required to comply with the direct contact/solicitation rules.

The inquiring lawyer did not indicate the specific legal matter that would be pursued; however, the lawyer gave, as an example, an advertisement for an employment class action that would be targeted to users who had told social media providers that they currently or previously worked for the potential defendant company.

The Bar advertising committee’s opinion found that this type of advertisement was subject to the direct contact/solicitation rule; however, it must comply with the general advertising rules.  The Florida Bar staff and professional ethics committee had also previously issued opinions stating that a lawyer posting information in an online chat room or sending text messages to telephones are required to comply with the direct contact/solicitation rules.

Bottom line:  As a result of the BOG decision (and unless it is reversed), lawyers who wish to use such targeted social media advertisements will be required to comply with the strict requirements of Florida Bar Rule 4-7.18(b) regarding direct contact with prospective clients.  Lawyers should also keep in mind that ethics and advertising opinions (and a BOG reversal of an opinion) are not binding and for guidance only; however, lawyers may be still subject to investigation and potential discipline if the interpretation of the rule is upheld.

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

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Filed under Attorney Ethics, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Bar Rule 4-7.18, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida lawyer solicitation social media class action Rule 4-7.18, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer social media ethics, Lawyer solicitation class action social media, Lawyer solicitation social media, Uncategorized

Proposed Comment to Florida Bar Rule 4-7.18 would permit exchange of contact information at business events and on business related social media

Hello everyone and welcome to this Ethics Alert which will discuss the proposed revisions to the Comment to Florida Bar Rule 4-7.18 which would permit the exchange of contact information at business events and on business-related social media, with caveats. The proposed revised language is on the agenda for review and final approval by the Florida Bar’s Board of Governors (BOG) at its meeting on January 31, 2020 in Tallahassee.

The BOG’s Professional Ethics Committee proposed additional language in the Comment to Bar Rule 4-7.18, Direct Contact With Prospective Clients which would specifically permit the exchange of contact information at business events and on business-related social media.  The proposed Comment language also cautions that lawyers should not discuss a specific legal matter if the prospective client initiates it, “and defer further discussion to a more appropriate location” if the discussion would “endanger” a prospective client’s confidentiality.

According to the BOG meeting agenda, the justification for the amendment is that “(t)he proposed commentary recognizes that lawyers frequently exchange contact information at business-related events and on business-related social media platforms. These events are usually at least in part to facilitate networking, the initiation of the exchange of contacted information is expected at these events, the lawyer normally would not know the prospective client has the need for specific legal services, and the prospective client would normally be a sophisticated user of legal services and less likely to be unduly influenced by the request.”

The complete proposed Comment language is below:

Permissible Contact

A lawyer may initiate the routine mutual exchange of contact information with prospective clients who are attending the same business or professional conference or meeting or business-related social gathering if the lawyer initiates no further discussion of a specific legal matter. Similarly, a lawyer may initiate the exchange of contact information and profiles via a specific social media platform that is established for the purpose of businesses and professionals exchanging this type of information if the lawyer initiates no discussion of specific legal matters. If a prospective client then initiates discussion of a specific legal matter, the lawyer should decline to discuss the matter at the initial contact and defer further discussion to a more appropriate location when the discussion would endanger a prospective client’s confidentiality. Lawyers should not interpret the above to allow a lawyer who knows a person has a specific legal problem to go to a specific conference or meeting where that prospective client will be in attendance in order to initiate the exchange of contact information. An accident scene, a hospital room of an injured person, or a doctor’s office are not business or professional conferences or meetings within the meaning of the discussion above.

Bottom line:  If implemented, the additional language in the Comment would clarify that lawyers can exchange contact information with potential clients at business events and on business-related social media however, it will caution that lawyers should not discuss a specific legal matter if the prospective client initiates it and if the discussion would compromise a prospective client’s confidentiality, the lawyer should defer discussion of the matter to a more appropriate location”.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Communication with clients, Confidentiality, Florida Bar, Florida Bar Rule 4-7.18 Comment- communication with potential clients business meetings and business social media, Florida Bar Rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising rules, Lawyer communication with potential clients, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Florida Bar Board of Governors finds that “Ambulances Chase Us” is improper and law firm can advertise “1-800-411-Pain”

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG) decisions to uphold the Florida Bar Standing Committee on Advertising (SCA) decision that “Ambulances Chase Us” is deceptive or misleading and reverse an SCA decision that a law firm’s billboards advertising the telephone number “1-800-411-PAIN” are misleading.

At its September 20, 2019, the BOG voted to uphold an SCA decision that the slogan “Ambulances Chase Us ”is deceptive or misleading under Rule 4-7.13(a) because it is “both unethical and illegal for ambulance drivers to solicit cases for lawyers and because it is factually and legally inaccurate.”

The Board Review Committee on Professional Ethics (BRC) voted to uphold the SCA finding that the advertisement is impermissible.  The BOG voted 18-14 to uphold the SCA finding.

At the same meeting, the BOG also voted, without debate, to reverse an SCA determination regarding billboards that advertise the telephone number “1-800-411-PAIN.”  As background, the SCA had voted to find that billboards are misleading under Bar Rule 4-7.13(a) because the advertisements are on behalf of the private law firm but advertise the telephone number “1-800-411-Pain” in North and Southwest Florida which was used by the now-defunct lawyer referral service called 1-800-411-Pain.  The telephone number is also currently being used by a new qualifying provider/lawyer referral service called “Path” in Southeast and Central Florida.

The law firm had argued, inter alia, that the advertisements were not misleading because they clearly show the law firm’s name. The law firm also stated that, at the BRC’s request, it will answer the telephone with the law firm’s name.

Bottom line:  There was apparently some discussion at the BOG meeting that the “Ambulances Chase Us” slogan was just an attempt at humor and was not misleading and the final 18-14 BOG vote was very close.  The 411 Pain vote reverses the SCA determination that the use of the telephone number was misleading.

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

 

Leave a comment

Filed under Florida lawyer advertising "411-Pain", Florida lawyer advertising "Ambulances Chase Us", Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Lawyer advertising, Lawyer advertising rules, Uncategorized

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

 

Leave a comment

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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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Filed under Attorney Ethics, Florida Bar, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising expert and specialist, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Professionalism, Lawyer use of expertise and specialist in advertising and certification, Lawyers use of specialization and expertise ethics, New Florida Bar Rule 4-7.14 use of expert and specialist, Uncategorized

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

Leave a comment

Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, lawyer solicitation of workers' compensation claimants and employers, Ohio statute prohibiting solicitation of workers' compensation stricken by federal appeals court, Uncategorized

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

Hello everyone and welcome to this Ethics Alert, which will discuss the recent approval of revisions to Florida Bar Rule 4-7.13 by the Florida Bar Board of Governors (BOG).  If implemented, the proposed revisions would prohibit misleading law firm information in all Florida lawyer advertisements.

As I previously reported, the agenda for the BOG’s May 26, 2019 meeting included final action on a proposed amendment to Florida Bar Rule 4-7.13 related to misleading law firm advertisements. The BOG ethics committee previously voted not to approve a proposal to add Bar Rule 4-7.13(c), which would have stated:

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 proposed rule would broaden the prohibition to include all advertisements 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 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 proposed rule will now undergo a review process and will be sent to the Florida Supreme Court in a petition for potential approval and implementation.

Bottom line:  As I have previously reported, if the revised Rule 4-7.13 prohibiting all of these types of misleading advertisements is implemented by the Florida Supreme Court, the rule would be consistent with other jurisdictions that have considered the issue.

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

Leave a comment

Filed under Attorney Ethics, deceit, false statements, Florida Bar, Florida Bar rule using GoogleAds words to misdirect to another firm, Florida Bar Rule- lawyer misleading law firm information in all advertising, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misleading law firm information in advertising, Lawyer misrepresentation, misrepresentations, Uncategorized