Category Archives: Lawyer advertising specialties and certification

The Florida Bar will file petition with advertising rule amendment regarding lawyer’s use of “expert” and “specialist” on October 15, 2016

Hello and welcome to this update of the May 25, 2016 Ethics Alert regarding the proposed amendment to Florida Bar Rule 4-7.14 with new subsection 4-1.14(a)(5) related to claims of “specialization” and “expertise” in advertisements.  The BOG approved the rule amendment and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals and the new Rule 4-7.14(a)(5) language is below:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

(a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(5) a statement that a lawyer is a specialist, an expert, or other variations of those terms unless:

(A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization;

(C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization; or

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

The new subsection in Rule 4-7.14(5)(a)(D) states that a lawyer is prohibited from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  In addition, if the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”

According to the Bar’s filing notice: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  As I previously said, it remains to be seen whether the Florida Supreme Court will approve the amendment as drafted and, if it does, whether the restrictions in the amended Bar rule on their face and as applied are in compliance with the federal district judge’s 9/30/15 order finding that the previous rule violated the United States Constitution.  The Order here: 9/30/15 J. Hinkle Order and Injunction.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert  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.

29605 U.S. Highway N., Suite 150

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 Board of Governors approves Florida Bar advertising rule amendment regarding lawyer’s use of “expert” and “specialist”

Hello and welcome to this update of my May 19, 2016 Ethics Alert regarding the Florida Bar Board of Governors’ final review of the proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise in advertisements.  The BOG approved the rule amendment as drafted at its meeting on May 20, 2016 in Palm Beach.  The approved amendment is below with the relevant new language in italics:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  As I previously said, it remains to be seen whether this rule amendment is in compliance with the federal court’s order and the United States Constitution on its face and as applied.  If the Bar reasonably interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it may be found to be constitutional if challenged.  Another potential constitutional challenge would be that the rule is vague and ambiguous on its face.  The rule amendment must now be reviewed and implemented by the Florida Supreme Court to become effective.  Stay tuned…

Disclaimer:  this Ethics Alert  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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers use of specialization and expertise ethics

Florida Bar Board of Governors will consider final action on rule amendment regarding use of “expert” and “specialist”

Hello and welcome to this Ethics Alert blog which will discuss the upcoming Florida Bar Board of Governors meeting this week in Palm Beach wherein the BOG is scheduled to vote on final action regarding a proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise.

The proposed amendment was drafted in response to a Southern District of Florida federal district court judge’s September 30, 2015 Order/injunction which found that the Bar’s prohibition of non-certified lawyers from stating they have expertise or specialize in an area of law unless they were Board certified was unconstitutional as applied and enjoined its enforcement.

The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcement of the rule.  The federal case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The federal injunction order is in the federal court’s Pacer system here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

The BOG will consider final action on the proposed rule amendment at its meeting on May 20, 2016.  The proposed amendment is below (with the new substantive language in italics):

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  If the BOG approves the proposed Rule amendment, it remains to be seen whether it will be applied in compliance with the federal court’s order and the U.S. Constitution.  If the amendment is approved and the Bar rationally interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it will most likely be found to be constitutional if it is challenged.  Another potential challenge would be on the ground that the rule is unconstitutionally vague and ambiguous on its face.  Stay tuned…

…and be careful out there.

Disclaimer:  this Ethics Alert  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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising rules, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism

Florida Bar Board of Governors considers advertising rule amendments on use of “expert” and “specialist” and approves rule regarding faxes, telegrams and online chatrooms

Hello and welcome to this Ethics Alert blog which will discuss the recent Florida Bar Board of Governors meeting wherein the BOG discussed rule changes to comply with a Florida federal district court judge’s Order finding that Bar rule which prevented non-certified lawyers from stating they have expertise or specialize in an area of law were unconstitutional and enjoining their enforcement.  The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcing the rule.  The case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The injunction order is attached and is in the federal court’s Pacer system here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

According to a March 1, 2016 Florida Bar News article, the chair of the Board Review Committee on Professional Ethics told the BOG at the meeting that the committee is considering several potential amendments; however, it has not agreed on a single version of the amendment. The committee chair said that the committee expected to make a recommendation at the board’s March 10, 2016 meeting; however, it is not clear whether the topic was discussed at that meeting.  The Florida Bar News article is here:  http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/Articles/A1C3E4D1089C7B3785257F61004E782D

The BOG review was started after a September 30, 2015 Order by U.S. Northern District of Florida Judge Robert L. Hinkle in a lawsuit filed against The Florida Bar by the Searcy, Denney, Scarola, Barnhart & Shipley, P.A. law firm.  The lawsuit challenged Bar rules which permit only Florida Bar (or the equivalent) certified lawyers to hold themselves out as “experts” or “specialists” in their advertisements.  The Order stated non-certified lawyers and law firms could have expertise in an area even if they were not certified and that the regulation prevented lawyers from claiming expertise in areas for which there is no available Bar certification and enjoined the Bar from enforcing the rule as applied.

According to an article in the October 15, 2015, Florida Bar News, “As a result of Hinkle’s ruling, the Bar’s Ethics and Advertising Department, which reviews lawyer ads, has announced it will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers.  ‘Instead, the Bar will point out to the filer that the advertisement makes claims of specialization or expertise, and the filer may use them only if the filer can objectively verify those claims’, Bar Ethics Counsel Elizabeth Tarbert said in a letter to Bar officials.”

The BOG also approved the Board Review Committee on Professional Ethics’ recommendation to allow lawyers to communicate directly with potential clients using facsimiles, telegrams, and in online chatrooms as long as the lawyers follow the Florida Bar rules related to direct mail communications/solicitations.  According to Bar Ethics and Advertising Counsel Elizabeth Tarbert, any solicitation made by the lawyer, including  within a chatroom, must be preapproved by the Bar and must also comply with any applicable state and federal laws on solicitations using those methods of transmission.

The direct communications must be characterized as “advertisements” and tell the recipient to disregard them if they already have an attorney in the matter. The amendments were revised for uniformity after the BOG recently decided that direct text communications were permissible under Bar rules.  The rule amendments will now be sent to the Florida Supreme Court for review and potential approval.

Bottom line:  The BOG will hopefully approve a Bar Rule amendment which will provide constitutionally compliant guidance to lawyers regarding when they can state that they are “experts” or “specialists”, even if they are not certified by The Florida Bar (or the equivalent).  It is most likely that the rule will have minimum requirements such as the number of years of practice and experience, among other potential criteria.  Stay tuned……and be careful out there.

Disclaimer:  this Ethics Alert  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

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar will not prohibit non-certified lawyers from making “objectively verifiable” claims of specialization/expertise

Hello and welcome to this Ethics Alert update which will discuss the fallout from the September 30, 2015 Order and injunction by U.S. Northern District of Florida Judge Robert Hinkle finding that the Florida Bar Rule prohibiting truthful claims of expertise without certification is unconstitutional and enjoining its enforcement.  The order is in Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The order is attached and is in Pacer here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

As I reported in my December 23, 2013 and October 2, 2015 Ethics Alert blogs, the Florida law firm of Searcy Denney Scarola Barnhart & Shipley, P.A. filed a federal lawsuit against The Florida Bar in December 2013 after the Bar found that language on the law firm’s website violated of Florida Bar Rule 3-7.14, which prohibits claims of expertise unless a lawyer is Florida Bar Board certified in that area of practice, whether truthful or not.

The Florida Bar advised the Searcy Denny law firm that it was prohibited from claiming that it “specializes or has expertise in mass-tort or unsafe-product cases, or even in personal-injury cases, even though the firm undeniably has expertise in these areas.”  The Order also stated: “ Nor can any individual attorney claim to specialize or have expertise in mass-tort or unsafe product cases, even if the attorney handles only cases of that kind, and even if the attorney has successfully handled many such cases.”

According to an article in the October 15, 2015, Florida Bar News by Gary Blankenship, “As a result of Hinkle’s ruling, the Bar’s Ethics and Advertising Department, which reviews lawyer ads, has announced it will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers.  ‘Instead, the Bar will point out to the filer that the advertisement makes claims of specialization or expertise, and the filer may use them only if the filer can objectively verify those claims’, Bar Ethics Counsel Elizabeth Tarbert said in a letter to Bar officials.”

Bottom line: The Florida Bar apparently has decided (at this point) to concede that a lawyer may claim that he or she specializes or has expertise in an area of practice even if the lawyer is not certified to practice in that area, with the important caveat that the lawyer must be able to “objectively verify” the claim of expertise or specialization (i.e. prove that it is truthful).

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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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 specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism

Federal District Judge enjoins The Florida Bar from enforcing rule prohibiting truthful claims of expertise

 

 

Hello and welcome to this Ethics Alert which will discuss the September 30, 2015 order and injunction issued by a U.S. Northern District of Florida Judge finding The Florida Bar’s rule prohibiting truthful claims of expertise without certification unconstitutional and enjoining their enforcement.  The injunction order is in the federal case of Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The order is attached and is in Pacer here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

As reported in my December 23, 2013 Ethics Alert blog, the Florida law firm of Searcy Denney Scarola Barnhart & Shipley, P.A. filed a federal lawsuit against The Florida Bar in December 2013 after the Bar found that language on the law firm’s website was in violation of Bar Rule 3-7.14, which prohibits claims of expertise unless a lawyer is Florida Bar Board certified in that area of practice, whether truthful or not.  That blog is here: https://jcorsmeier.wordpress.com/2013/12/23/florida-law-firm-files-federal-suit-challenging-constitutionality-of-the-florida-bars-2013-advertising-rules-including-linkedin-and-objectively-verifiable-requirements/

The Florida Bar Rule states as follows, in relevant part:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

  • Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4)  a statement that a lawyer is board certified, a specialist, an expert, or other variations of those terms unless:

(A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating    the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by     the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization; or

(C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization.

In the absence of such certification, a lawyer may communicate the fact that the lawyer limits his or her practice to 1 or more fields of law…

The injunction order found that the rule was unconstitutional as applied and prohibited the Bar from enforcing it against lawyers who make truthful statements regarding their expertise.  The order states as follows:

“The bar prohibits every lawyer in the state from claiming expertise in mass tort or unsafe product cases because there is no board certification in these narrow fields. And the bar prohibits every law firm in the state from claiming expertise in personal injury cases, because law firms, as distinguished from individual lawyers, cannot be board-certified.” “The state cannot prevent a person from advertising a lawful specialty, even if the state’s own definition of the specialty is different.”

The law firm also had the following statements on its website: “The days when we could trust big corporations…are over”; “government regulation of corporate America’s disregard of consumer safety has been lackadaisical at best”; and “when it comes to ‘tort reform,’ there is a single winner: the insurance industry.”

The Florida Bar found that these statements were not “objectively verifiable” and were therefore prohibited.  The order stated that the Bar’s position on political statements was “obviously unconstitutional”; however, since the Bar withdrew from its initial position and the law firm failed to appeal the standing committee’s decision to the Board of Governors, the issue was not ripe for consideration.  “Until the Board of Governors interprets the rule in an unconstitutional manner, the challenge is premature”.

Bottom line: If this order and injunction is upheld (or the Bar decides not to challenge it), it will result in a very significant change in the landscape of lawyer expertise and specialization advertising in Florida and in other states which have similar rules.  If upheld, lawyers will be permitted to advertise that they are “specialists” in areas of practice in which they are not certified by The Florida Bar, as long as the statements are “truthful”.  In addition, if the Bar does not change its position that “political statements” such as those on the website are not prohibited, this will also be a significant change in the interpretation of the Bar advertising rules.  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.

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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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 rules, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer websites