Category Archives: Lawyer advertising testimonials

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 votes to prohibit actors from reading client testimonials in lawyer advertisements

Hello everyone and welcome to this Ethics Alert blog which will discuss the May 2016 decision of the Florida Bar’s Board of Governors (BOG) to prohibit client testimonials read by actors in lawyer advertisements.

According to an article in the June 15, 2016 Florida Bar News, the BOG debated whether accept or reject a Bar Advertising opinion stating that lawyers are prohibited from using actors to read (and dramatize) client testimonials.  The 2013 revisions to the Florida Bar advertising rules permit the use of client testimonials if certain requirements are met, including that the lawyer not write the testimonial or pay the client for it.  The current advertising rules also permit lawyers to use an actor in a lawyer advertisement if it has the required disclaimer(s).

The BOG reviewed two proposed television advertisements submitted by a law firm.  The first advertisement had the following language in testimonial form: “When I was injured in my car accident, my first thought was: How will I be able to take care of my family? That’s why I called the law offices of . . . . They made sure I could continue to take care of my family with $650,000 in insurance compensation for my car accident injuries.”  The second advertisement had this testimonial language: “I love sports . . . baseball, soccer, all kinds of sports, but after my car accident, I wasn’t sure if I would be able to enjoy playing sports again. I called the law offices of . . . and they helped get me back in the game with a $100,000 insurance settlement.”  Both were to be read by actors.

According to the Bar News article, the chair of the BOG Review Committee on Professional Ethics stated that the BOG committee voted 7-2 to recommend the advertisements violated Florida Bar Rule 4-7.13, which prohibits deceptive and misleading advertisements.   The BOG Review Committee agreed with the Bar advertising staff opinion and the Standing Committee on Advertising which had found that having an actor read a client testimonial would violate the Bar advertising rules.

On a voice vote, the BOG approved the BOG Review Committee on Professional Ethics’ recommendation to reject the proposed advertisements because they violate Florida Bar Rule 4-7.13 prohibiting deceptive and misleading advertisements.

Bottom line:  Lawyers who advertise must be aware that the 2013 revisions to the Florida Bar’s Advertising Rules have somewhat dramatically altered the landscape of advertising in Florida.  The rules now specifically permit both testimonials (with certain requirements) and actors in advertisements (with disclaimers); however, in this decision, the BOG made it clear that actors cannot read such testimonials in lawyer advertisements in Florida.

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.

Please note:  Effective June 27, 2016, my new office address will be: 29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761.  E-mail addresses and telephone numbers below will remain the same.  I may also have limited telephone service on Thursday, June 23 and Friday, June 24; however, my e-mail service should still be available 

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 comprehensive lawyer advertising rules, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising actors, Lawyer advertising testimonials, Lawyer advertising testimonials read by actors, Lawyer ethics, Lawyer Ethics and Professionalism