Category Archives: Lawyer responsibilities AVVO and Linkedin

Potential Florida Bar ethics advisory opinion 17-2 will address lawyer referral fees and private client matching services

Hello everyone and welcome to this Ethics Alert which will discuss recent decision by the Florida Bar’s Board of Governors (BOG) to consider a potential ethics advisory opinion to address the ethics issues surrounding lawyer referral fees and private client matching services.  The advisory opinion has not been drafted; however, the draft opinion will be identified as Proposed Advisory Opinion 17-2.

The Bar review began after a lawyer sent an ethics inquiry to The Florida Bar asking whether lawyers could participate with a private lawyer referral service which planned to charge a different set fee depending upon the type of case referred.  The lawyer referred to the system “as a ‘pay-per-lead’ structure.”

The lawyer’s inquiry was referred to the BOG and, at its July 21, 2017 meeting in Miami, the BOG unanimously approved the recommendation of the Board Review Committee on Professional Ethics (BRCPE) that it be directed to prepare an advisory opinion on the inquiry, specifically whether lawyer referral services can charge a fee per referral and impose different fees for different types of cases.  The BRCPE has authority to decline drafting an opinion and the BOG could also decide not to issue the opinion if it is drafted.

If an ethics advisory opinion is drafted, it will address the ethics issues created when online entities (such as AVVO) rolled out programs which attempt to match potential clients with lawyers and which make different payments depending on the type of case.  The opinion would also address the Bar rules related to advertising and referral services.  Lawyers and others will be able to comment on the issues before any opinion is drafted and/or approved.

The Florida Bar Rules have long prohibited lawyers from sharing fees with private referral services.  The Bar’s Standing Committee on Advertising (SCA) also rejected “pay-per-lead” plans on previous appeals and the BOG rejected an appeal from a referral service that proposed a payment of $300.00 to participating lawyers for each referred and accepted case in 2012.

Other jurisdictions have published ethics opinions addressing these issues or are in the process of reviewing them.  As I reported in a recent Ethics Alert blog, New York Ethics Opinion 1132 (published August 8, 2017) found that New York lawyers are prohibited from participating in AVVO’s client referral services.  The opinion found that lawyers who participate in AVVO’s client referral services (and any similar services) would violate the New York Bar rules since they involve AVVO’s improper “vouching” for (recommendation of) the lawyer, improper lawyer referral fees, and improper fee sharing with a non-lawyer.

As background, The Florida Bar filed a petition with proposed Bar rule amendments with the Florida Supreme Court in 2015 addressing, inter alia, referral services that offer both legal and medical or other non-legal services. Those proposed rules would have allowed lawyers to participate in those services, as long as clients were informed about potential conflicts, there was no quid pro quo requiring the lawyer to send a referred client for medical or other services offered by the referral agency, and the lawyer’s independent judgment was not affected.

The Florida Supreme Court published an opinion on September 24, 2015 which declined to implement the rule revisions and instructed the Bar to draft rules that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.”    That opinion is here: 9/24/15 SC Opinion

The Florida Bar then filed revised rule amendments designating private entities which match lawyers with potential clients as “qualified providers” and requiring those entities to comply with the Bar rules, including a required review of the advertisements. Participating lawyers would not have been required to carry malpractice insurance.

The Florida Supreme Court heard oral argument in April 2017 and then published an order dismissing the petition on May 3, 2017. That order is here: 5/3/17 SC Order.  The order stated: “In this case, the Bar proposes amendments to rule 4-7.22 that do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar.

The May 3, 2017 Order also stated that the dismissal was without prejudice “to allow the members of this Court to engage in informed discussions with the Bar and those who are in favor or against the proposed regulation of matching and other similar services. The Court lacks sufficient background information on such services and their regulation at this time.”  A meeting was held at the June 2017 Bar Annual Convention in Boca Raton to discuss the issues and was attended by Justices, Bar officials, and representatives of private referral services.

The Bar’s Notice of the proposed ethics advisory opinion was published in the August 15, 2017 issue of the Florida Bar News.  The Bar’s Notice is here: 8/15/17 Notice of Proposed advisory opinion 17-2.

According to the Notice:  “The Board Review Committee on Professional Ethics will consider adopting a proposed advisory opinion at the direction of The Florida Bar Board of Governors based on an inquiry by a member of The Florida Bar, at a meeting to be held on Thursday, December 7, 2017, from 1-3 p.m. at the Ritz-Carlton on Amelia Island.” and “comments from Florida Bar members are solicited on the issues presented. Comments must contain Proposed Advisory Opinion number 17-2, must clearly state the issues for the committee to consider, may offer suggestions for additional fee arrangements to be addressed by the proposed advisory opinion, and may include a proposed conclusion. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication.”

Bottom line:  If the ethics opinion is drafted and approved, Florida will join the growing list of jurisdictions addressing “marketing fees” taken from fees paid by private online entities to lawyers participating in client generation services.  This ethics opinion (like all ethics opinions) would be advisory and for guidance only.

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

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New Jersey joint ethics opinion finds that fees paid to Avvo for client referrals violate New Jersey Bar rules

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey joint ethics opinion which found that lawyers in New Jersey are prohibited from participating in client referral services provided by AVVO because the services involve improper lawyer referral fees and fee sharing with a non-lawyer.  The joint ethics opinion is here: https://www.dropbox.com/s/5plgfqgi26zuym1/ACPE%20732%20Avvo%2C%20LegalZoom%2C%20Rocket%20Lawyer%206.21.17.pdf?dl=017  and the New Jersey Supreme Court Notice to The Bar of the joint ethics opinion is here: https://www.judiciary.state.nj.us/notices/2017/n170621i.pdf

The joint ethics opinion found that none of the legal service plans interfered with the independent professional judgment of participating lawyers, and Avvo’s procedure of holding fees until the legal services are performed does not violate lawyer trust account rules.

The joint opinion also describes the services offered by three companies’ websites.  Avvo offers two legal services products through its website: “Avvo Advisor” and “Avvo Legal Services”.  Individuals who use “Avvo Advisor” pay a flat fee for a 15-minute phone conversation with a lawyer, while consumers who use “Avvo Legal Services” purchase specific services, such as an uncontested divorce, for a flat fee.  Avvo then deposits the flat fee into the lawyer’s bank account and withdraws a “marketing fee.”

The ethics opinion found the “marketing fee” is an impermissible referral fee, and not a permitted fee for the cost of advertising, as well as an impermissible shared fee between a lawyer and the non-lawyer.  The ethics opinion referred to ethics opinions in Ohio, South Carolina, and Pennsylvania that found marketing fees charged by “Avvo-type companies” were improper referral fees or constituted impermissible fee sharing.

The opinion found that services provided by LegalZoom and Rocket Lawyer appear to comply with the ethics rules if they were registered with the courts’ administrative office, as required by New Jersey’s rules.  LegalZoom’s “Business Advantage Pro” and “Legal Advantage Plus” charge a flat monthly fee for legal advice and consumers can purchase additional services from participating lawyers at a discounted rate.  LegalZoom keeps the monthly subscription fees.  Rocket Lawyer’s legal services plan charges a flat fee for limited legal advice on document-related matters and a free 30-minute lawyer consultation.  Rocket Lawyer keeps the subscription fees and participating lawyers can offer legal services at discounted rates.

Bottom line:  This ethics opinion is the most recent which has reviewed the recent legal services plans of AVVO (and other entities) and found that the fee charges in AVVO’s plan constitute improper referral fees and fee sharing.  Other jurisdictions may weigh in with their own ethics opinions in the future (or the rules may be changed).  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

 

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New York ethics opinion provides guidance for lawyers regarding the ethical implications of attorney profiles and content on LinkedIn

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York ethics opinion which provides guidance to lawyers who use LinkedIn.com for professional enhancement as well as the ethical implications of attorney profiles.  The opinion is New York County Lawyers Association Professional Ethics Committee Formal Opinion 748 (March 10, 2015) and the link to the formal opinion is here: https://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf

As the opinion notes, LinkedIn is a business-oriented social networking website which has become popular and is now commonly used by lawyers.  LinkedIn allows a lawyer to create a profile with background information, including work history and education, and links to other users based on their experience or connections.  Lawyers can also use the site to communicate with acquaintances, locate someone with a particular skill or background or to keep up with other lawyers’ professional activities and job changes.  The lawyer can also publish educational information on the site’s home page or create separate LinkedIn page.  I have a LinkedIn blog page which is here: https://www.linkedin.com/groups?home=&gid=4043538&trk=groups_most_recent-h-logo

The opinion cautions that a lawyer’s content may be an advertisement and that New York Rule of Professional Conduct 7.1 prohibits attorneys and law firms from disseminating an advertisement that contains false or misleading statements and/or claims.  The term “advertisement” includes “communications made in any form about the lawyer’s services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication.”

The New York rule permits attorneys to include educational experience, but prohibits undisclosed paid endorsements and fictitious portrayals or references to lawyers not associated with the firm.  The New York rule also requires online content which is an advertisement to be labeled as “Attorney Advertising” and advertisements must also include a disclaimer that results are not guaranteed.

The opinion concludes that “(a)ttorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising. If an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills or endorsements, the profile may be considered Attorney Advertising, and should contain the disclaimers set forth in Rule 7.1. Categorizing certain information under the heading ‘Skills’ or ’Endorsements’ does not, however, constitute a claim to be a ‘Specialist’ under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.”

“Attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations written by other LinkedIn users. If an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.”

Bottom line:  As the opinion states, lawyers should carefully monitor their social media content to insure that it complies with the ethics rules in the lawyer’s jurisdiction(s).  If a communication is primarily intended to obtain clients and for pecuniary gain (and contains information that goes beyond the “tombstone language” permitted in that jurisdiction), the communication will most likely be considered to be an advertisement and all relevant rules of advertising must be followed.  This would efforts to insure that all information is accurate, that the content is not misleading, and the inclusion of any relevant disclaimers.  The Florida Bar’s advertising rules are similar to New York’s; however, lawyers in jurisdictions other than New York should not rely on this opinion and must review and comply with the relevant 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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Florida Bar’s Board of Governors approves guidelines for advertising past results and revokes informal advisory opinion stating that LinkedIn violates Bar Rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent decisions of the Florida Bar Board of Governors, including approval of guidelines for advertising past results and revoking the staff advisory opinion stating the LinkedIn violates Bar Rules.  The Guidelines for Advertising Past Results are attached and are here: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/FB68CB88389B9FC785257C430053B5F9/$FILE/guidelines%20past%20results.pdf?OpenElement

The Florida Bar’s Board of Governors (BOG) met on December 13, 2013 and, based upon a recommendation of the BOG Review Committee on Professional Ethics, approved proposed guidelines for advertising past results under the 2013 revised advertising rules.  The BOG also voted to revoke the September 2013 staff advisory opinion/letter stating that the use of LinkedIn violates Florida Bar Rules and requested the Standing Committee on Advertising to prepare an advisory opinion on the use of the LinkedIn social and professional networking site by Florida lawyers.

Some of the most significant sections of the guidelines are below: 

“When an advertisement includes a dollar amount and language or an illustration that indicates that a client has received the specific amount (“My lawyer got me $X” with a photograph of a person receiving money), the dollar amount must be the net amount received by the client. The net amount is the amount after deductions for attorneys’ fees and litigation-related expenses.”

“An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates Rule 4-7.13(a)(2).”  Examples include failure to disclose that a civil verdict was overturned on appeal or claiming that an acquittal on one or more criminal charges was successfully obtained without disclosing that the client was convicted of other crimes in the same matter.

“Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not approve advertisements in such media that include references to past results.”

“Statements regarding collective or aggregated results about the amount of recovery are impermissible under Rule 4-7.13(a) because they are inherently misleading as there is no way for the viewer to know how many cases, clients, and/or lawyers are involved or the amounts and facts of individual matters that would permit consumers to make informed decisions regarding them.”

Bottom line:  This is a significant development in the ongoing evolution of the Bar’s position on the 2013 revised advertising rules and lawyers’ use of social media.  All Florida lawyers should carefully review the past results guidelines (which are important but not mandatory or binding).  Although the revocation of the informal opinion does not necessarily change the Bar’s position that the terms “Specialist” and Skills and Expertise” cannot be used by lawyers other than those who are Board certified, the fact that the BOG revoked the opinion and requested that the Standing Committee on Advertising prepare an advisory opinion on the implications of Bar members using LinkedIn is very significant.  Stay tuned…

…and 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

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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The Florida Bar’s Statewide Committee on Advertising has deferred consideration of informal opinion on Linkedin “Skills and Expertise” page until 10/29/13

Hello everyone and happy Columbus Day to you. This is an update of my 9/24/13 Ethics Alert blog which discussed September 11, 2013 Florida Bar Advertising Staff Opinion which states that Florida lawyers cannot list areas of practice on Linkedin.com “Skills and Expertise” page unless they are Board Certified (or the equivalent).  The September 11, 2013 staff opinion is here:  http://it-lex.org/wp-content/uploads/2013/09/Florida-Bar-Opinion-re-LinkedIn-Redacted.pd

I was advised by the Ethics and Advertising Counsel for The Florida Bar today that the SCA was unable to consider the staff opinion at its October 8, 2013; however, the committee plans to consider the opinion at its meeting on October 29, 2013.  I will keep everyone advised.

Bottom line:  As I stated in my previous Ethics Alert, the staff opinion is not binding and is intended to provide guidance to lawyers; however, lawyers must be aware that The Florida Bar has taken this position.  This is clearly an important issue that must be addressed by The Florida Bar and the Bar’s Statewide Committee on Advertising will be considering the issue to potentially draft a formal advertising opinion at its next meeting on October 8, 2013.  If you would like to provide your comments to the Statewide Committee on Advertising, you can send them to Elizabeth Tarbert, the Ethics and Advertising Counsel for The Florida Bar who oversees the SCA, or you can attend the meeting and ask to be heard.

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) 799-1670jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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South Carolina ethics advisory opinion states that lawyers are responsible for insuring that claimed third party website profiles and content comply with Bar Rules

Hello and welcome to this Friday the 13th edition of the Ethics Alert blog which will discuss the South Carolina ethics advisory opinion which states that lawyers who claim their profile on third party websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo and who solicit peer ratings are responsible for insuring that the content complies with that state’s Bar Rules.  The ethics opinion is South Carolina Ethics Advisory Opinion 09-10 and the 2009 opinion is online here: http://www.scbar.org/MemberResources/EthicsAdvisoryOpinions/OpinionView/ArticleId/107/Ethics-Advisory-Opinion-09-10.aspx

The ethics advisory opinion provides a comprehensive discussion of lawyers’ responsibilities regarding business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo, and other such websites under South Carolina Bar Rules, which are similar to many other state Bar Rules, including Florida.  According to the opinion, “(i)nformation on (these) business advertising and networking websites are both communications and advertisements; therefore, they are governed by (South Carolina Bar) Rules 7.1 and 7.2.  While mere participation in these websites is not unethical, all content in a claimed listing must conform to the detailed requirements of Rule 7.2(b)-(i) and must not be false, misleading, deceptive, or unfair.”

The opinion also states that “(s)oliciting peer ratings does not violate the Rules of Professional Conduct.  Martindale-Hubbell has employed a lawyer rating system for more than 100 years, and federal courts have held that advertising factual information about such verifiable, independent ratings does not violate state advertising prohibitions against statements likely to mislead or create unjustified expectations about results.  See, e.g., Mason v. Florida Bar, 208 F.2d 952 (11th Cir. 2000).  More recently, advertisements about newer ratings organizations, such as SuperLawyers, have been given the same regulatory berth by state agencies.  See, e.g., In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008)(per curiam)(vacating the court’s own committee’s 2006 advisory opinion prohibiting advertising of “SuperLawyers” and “Best Lawyers in America” designations, on the grounds that the prohibition is likely unconstitutional because such designations are factually verifiable). Therefore, provided that the rating is presented in a non-misleading way and is independently verifiable, including one’s rating in an online listing or elsewhere appears permissible.”

“Lawyers soliciting client comments on web-based business listings are also cautioned to adhere to Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another. Even absent a specific prohibition against testimonials, several states have concluded that client comments contained in lawyer advertising violate the prohibition against misleading communications if the comments include comparative language such as “the best” or statements about results obtained. See, e.g., Virginia State Bar Lawyer Advertising Opinion A-0113 (2000). Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements. Therefore, a lawyer should monitor a ‘claimed’ listing to keep all comments in conformity with the Rules.  If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.

Bottom line:  As I have said previously, state Bar ethics opinions are not binding on lawyers; however, this ethics opinion is useful for guidance since it addresses many of the issues related to lawyers’ participation in business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo.  The opinion concludes that, although a lawyer’s participation in such websites is ethical, the lawyer is required to insure that the content and communications are in compliance with that state’s Bar Rules and the lawyer should monitor a claimed listing to make sure that all comments comply with the Bar Rules.  Florida lawyers should also keep in mind that the recent Florida advertising rule revisions state that the advertising rules apply to “all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media.” 

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

www.jac-law.com

 

 

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