Category Archives: Lawyer websites

N.J. Supreme Court reverses reprimand and dismisses complaint against lawyer who posted allegedly confidential information on his website

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New Jersey Supreme Court opinion reversing a Disciplinary Review Board’s reprimand recommendation and dismissing a complaint against lawyer who was alleged to have posted client confidential information on his website.  The disciplinary case is In the Matter of Jay J. Chatarpaul, Docket No. 15-134 (July 15, 2016).  The opinion is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1073877 and the Review Board’s Decision is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1068061

According to the Decision, the disciplinary complaint originated from a discrimination lawsuit filed by the lawyer against Rite Aid on behalf of his client Rameena Khan, which was ultimately settled. The settlement agreement stated:

Plaintiff’s Attorney agrees that as of the execution of this Agreement, it [sic] has removed: (a) any and all articles, blogs, or other writings that have been authored, posted, publicized or controlled by it [sic], which disparage or discuss the Lawsuit, Complaint, Federal Action, Amended Complaint, the Trial or the Appeal in any manner whatsoever, from the Internet and elsewhere, including but not limited to the articles attached hereto as Exhibit A; and (b) all hyperlinks and references to said articles from the Internet. In addition, [respondent] agrees not to write any further articles or blogs, or make any nonprivileged statements, regarding or referencing the Lawsuit, the Complaint, the Amended Complaint, the Federal Action, the Trial or the Appeal.

The lawyer had previously published an article on his website discussing, inter alia, the facts of the case and alleged errors made by the Superior Court Judge who presided over the case:

At trial, the case was assigned to Judge Christine Farrington. Judge Farrington was recently appointed as a judge of the Superior Court and took the bench in June 2010. Prior to being appointed judge, Judge Farrington spent 10 years as deputy counsel for the Port Authority of New York and New Jersey and worked in claims administration, risk management and environmental matters.  During the trial, Judge Farrington made various prejudicial comments suggesting lack of impartiality, improperly excluding [sic] evidence and testimonies, etc., which are the subject of a pending appeal. Judge Farrington excluded various documents and testimonies, including documents and witnesses relating to the unemployment appeals hearing, documents and witnesses relating to Ms. Lazzaro [sic] termination and replacement, and other matters that are the subject of an appeal. The plaintiff’s position is that the jury’s verdict in favor of Rite Aid was the product of many errors of the trial judge, including various comments suggesting favoritism towards the position of Rite Aid. The plaintiff is confident that the appellate courts would [sic] grant a new trial based on these perceived errors.

The lawyer testified that although “in retrospect, he should not have made such statements about the judge and her rulings, respondent did not believe they were unethical. Still, he would not publish such an article again because he did not want to be the subject of another ethics investigation.”

The New Jersey Office of Attorney Ethics advised the lawyer to remove the article from his website because it allegedly contained client confidential information.  The lawyer removed the article from his website; however, it was still visible through a Google search.  The lawyer also argued that the information was public record and prohibiting him from publishing it would violate the First Amendment.

According to the Decision, “In respondent’s view, after the hyperlink had been removed from the law firm’s website, the article remained within the internet archives, but he did not know how to ‘get rid of that.'”  The Special Master found that the lawyer’s representations that he had removed the article constituted “gross negligence” since the article was still accessible on the internet, that the article violated the New Jersey lawyer advertising rules, and that the failure to remove the article was prejudicial to the administration of justice since the lawyer “failed to take reasonable and necessary steps to make sure the Kahn [sic] Article was completely removed from the Internet (especially after Respondent received the OAE’s April 8, 2013 letter), and that his failure to do so has unnecessarily consumed resources of the State.”

In the New Jersey Disciplinary Review Board Decision, four members recommended a reprimand, one member voted for an admonition, and another member voted to dismiss the disciplinary matter.  The majority found that the article violated client confidentiality and that the lawyer failed to preserve his website pages for 3 years under N.J. Bar Rule 7.2(b) (b) (A copy or recording of an advertisement or communication shall be kept for three years after its last dissemination along with a record of when and where it was used.”  The Decision acknowledged that there was no precedent for applying the requirement to website pages.

The New Jersey Supreme rejected the Disciplinary Review Board’s reprimand recommendation and dismissed the complaint.  The opinion found that “the respondent’s conduct in revealing information that was a matter of public record under the circumstances here did not violate (the client confidentiality rule)” and “there is a lack of precedent for applying RPC 7.2(b) to impose discipline on an attorney for failure to retain webpages of the attorney’s or a law firm’s website.”  The opinion also recommended that the New Jersey advisory committee on professional ethics consider amending the rules to require lawyers to retain their webpages for a minimum period of time.

Bottom line:  The factual and procedural circumstances underlying this opinion are convoluted; however, the lawyer argued that the article that he posted on his website contained public record and prohibiting him from publishing the information would be a violation First Amendment of the U.S. Constitution.  The opinion found that revealing information that is a matter of public record does not violate the New Jersey client confidentiality rules.

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 is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

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 Attorney discipline, Attorney Ethics, Confidentiality, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer advertising, lawyer confidentiality, Lawyer discipline, Lawyer dismissal of Bar complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer revealing client confidential information on internet, Lawyer websites

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

Louisiana Supreme Court refuses to sanction a lawyer who claimed a non-existent specialization on a law firm website because of a lack of a “culpable state of mind”

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary case wherein the court refused to sanction a lawyer who claimed a non-existent specialization on his former law firm website because he did not have a “culpable state of mind” and the public was not harmed. The opinion is In re: Kearney Soniat Du Fossat Loughlin, Supreme Court of Louisiana Case No. 14-B-0923 (September 26, 2014) and is online here: http://www.lasc.org/opinions/2014/14B0923.pc.pdf.

According to the opinion, the lawyer created a website in 2007 to promote his law firm. The home page and the firm profile page had the following statement: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.” In 2009, the lawyer requested that the website be taken down for revisions because his wife, with whom he had been practicing, left the private practice of law.

In October 2011, during an investigation of an unrelated matter, the Louisiana Office of Disciplinary Counsel (“ODC”) accessed the firm profile page of the lawyer’s former website through a web search. After an investigation, a one count formal charge was filed against the lawyer, alleging violations of the Louisiana advertising rules by claiming that he “specialized” in maritime personal injury and death cases, even though that specialization was not recognized and/or approved by the Louisiana Board of Legal Specialization.

The lawyer denied the allegations and, after a hearing, the disciplinary hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases and recommended a reprimand and that the lawyer attend an advertising continuing education course, notwithstanding the fact that such specialization did not exist in Louisiana. The Louisiana disciplinary board approved the findings and recommendation of the committee.

The Court’s opinion reversed the recommended reprimand and imposed no sanction: “The record establishes respondent’s actions were not taken with a culpable mental state. It is also undisputed his actions caused no harm to the public. Considering these factors, we do not find respondent’s actions rise to the level of sanctionable misconduct. Therefore, we will dismiss the formal charges against respondent.”

Bottom line: This opinion clearly seems to indicate that, at least in Louisiana, the Bar must show that a lawyer had a “culpable state of mind” (not mere negligence) to prove a violation of the Bar Rule prohibiting a lawyer’s claim of specialization on a website; however, the fact that Louisiana has no specialization in “maritime personal injury and death cases “ could very well have been an important factor in this decision.

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
http://www.jac-law.com

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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising Linkedin.com, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer discipline, Lawyer dismissal of Bar complaint, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer sanctions, Lawyer websites

South Carolina Supreme Court prohibits another Florida lawyer from practicing law who solicited over the internet, made misrepresentations, and represented clients

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the South Carolina Supreme Court which prohibited another Florida lawyer who was not admitted in that state from admission to practice for soliciting over the internet and representing clients, making false statements, and failing to respond to the allegations, this time permanently. The opinion is: In the Matter of Alma C. Defillo, SC Case No. 27431 (August 13, 2014) and is at: http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27431.pdf.

According to the opinion, formal disciplinary charges were filed against the lawyer, who was licensed to practice in Florida but not in South Carolina. The first count alleged that the lawyer opened an office in Greenville, South Carolina in 2012, “ostensibly to handle federal immigration matters. Respondent had no law partners or associates who were licensed in South Carolina except for a period of approximately fourteen days in August 2012. Respondent offered to provide legal services in South Carolina using methods specifically targeted at potential clients in South Carolina, including a law firm website, business cards, print advertisements, and radio commercials…”

“In connection with her representation of two clients in federal immigration matters, respondent sent letters to judges for the state circuit court in Greenville, requesting certification that the clients were crime victims. The letterhead contained the phrase “Attorneys and Counselors at Law” when, in fact, respondent had no partners or associates at the times the letters were written. Respondent’s letterhead included her Greenville office address without indicating the jurisdictional limitations on her ability to practice law.”

“Respondent advertised her law firm through the use of a website available to residents of South Carolina. Included on the website are references to respondent’s Greenville office. Respondent’s website contains material misrepresentations and omits facts necessary to make the contents considered as a whole not materially misleading. On her website, respondent advertises her office in Greenville but fails to state that she is not licensed to practice law in South Carolina or to otherwise set forth the jurisdictional limitations on her practice in this state. Further, respondent’s website is not limited to the promotion of her federal immigration practice as she advertises her experience in both criminal and family law and offers to ‘analyze the facts of [her prospective client’s] case by applying current…State Laws.’ In addition to false and misleading statements regarding offers to practice in this jurisdiction, respondent repeatedly refers to the firm’s “lawyers” and “attorneys” when, in fact, respondent is a sole practitioner with no partners, only sporadically employing associates in her law firm.

“Respondent’s website compares her services with other lawyers’ services in a way that cannot be factually substantiated by stating her law firm is ‘unique’ because she and her staff are fluent in Spanish and English. Additionally, respondent includes forms of the words ‘specialist’ and ‘expert’ on her website even though she is not a specialist certified by this Court. Respondent promotes her law firm by distributing printed business cards. The business cards advertise her office in Greenville without disclosing the fact that respondent is not licensed to practice law in South Carolina or disclosing the geographical limitation of her law practice in this state.

“Respondent promotes her law firm by publication of print advertisements in Spanish-language magazines and other periodicals distributed in South Carolina. Respondent’s print media advertisements lists her office in Greenville without disclosing the fact that she is not licensed to practice law in South Carolina or disclosing the jurisdictional limitations on her practice in this state. Respondent promotes her law firm by broadcasting commercials on Spanish-language radio stations in South Carolina. Respondent’s radio commercials include reference to her office in Greenville without disclosing the fact that she is not licensed in South Carolina or disclosing the geographical limitations of her practice.”

The second count stated: “Respondent initially cooperated with the disciplinary investigation by timely submitting her responses to the notice of investigation and ODC’s subpoena for her client files and record of advertising dissemination. However, respondent failed to submit a response to the supplemental notice of investigation served on her on April 5, 2013. As a result of her failure to submit a response to the supplemental notice of investigation, ODC issued a notice for respondent to appear for an interview on May 23, 2013. Respondent contacted ODC and requested the interview be postponed.

“Pursuant to that request, ODC issued an amended notice to appear, setting the interview for May 31, 2013. Respondent failed to appear, although her husband called ODC thirty-two minutes before the scheduled interview time to state respondent would not be attending the interview due to a court appearance in Georgia. Respondent’s husband was asked to instruct respondent to contact ODC after her court appearance in Georgia to reschedule the interview. As a result of respondent’s failure to contact ODC pursuant to this instruction, ODC issued a third notice to appear, setting the interview for July 2, 2013. Respondent did not appear on July 2, 2013, and has not contacted ODC with regard to this disciplinary matter since that time.

“Respondent made the following false or misleading statements in her response to the initial notice of investigation that she submitted to ODC: My practice is limited to Immigration Law. I have [not] portrayed myself to practice any other law but federal immigration law. At no time I have portrayed myself to represent residence [sic] of South Carolina with any legal services other than those that are exclusively related to immigration law. I solely practice federal immigration law.”

The SC disciplinary hearing panel found that the lawyer was subject to discipline pursuant to SC Bar Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct or other rules of this jurisdiction regarding professional conduct of lawyers) and Rule 7(a)(3) (it shall be ground for discipline for lawyer to willfully violate valid order of Commission or hearing panel, willfully fail to appear personally as directed, or knowingly fail to respond to lawful demand from disciplinary authority to include request for response or appearance) and that she violated SC disciplinary rules related to advertising, false statements and other rules.

The opinion stated that South Carolina has jurisdiction over all allegations that a “lawyer” has committed misconduct and that the term “lawyer” includes “a lawyer not admitted in this jurisdiction if the lawyer …offers to provide any legal services in this jurisdiction [and] anyone whose advertisement or solicitations are subject to Rule 418, SCACR Rule 2(q).” The opinion also states that the “authority to discipline lawyers and the manner in which the discipline is imposed is a matter within the Court’s discretion. In the Matter of Berger, 2014 WL 1386688 (2014); In the Matter of Van Son, 403 S.C. 170, 742 S.E.2d 660 (2013). The misconduct in this matter is similar to that in In the Matter of Van Son, id., where a lawyer who was not admitted in this state sent solicitation letters to at least two South Carolina residents and, thereafter, failed to cooperate with ODC’s investigation. In addition to other sanctions, the Court barred the lawyer from admission in this state and from advertising or soliciting clients in South Carolina for a period of five years.”

“In the current matter, not only did respondent target residents of South Carolina through various forms of advertising including radio communications and print media, but she also held herself out as licensed to practice law in this state, welcomed clients with criminal and family law concerns, and sent letters on behalf of clients addressed to state court judges. Further, when she did participate in the disciplinary investigation, respondent made false statements of material fact concerning the extent of her practice and the extent of her advertising in South Carolina to ODC. Since then, respondent has failed to cooperate in the disciplinary investigation and to appear for the hearing. (citation omitted.

“We find it appropriate to permanently debar respondent from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing her to seek admission. Further, we prohibit respondent from advertising or soliciting business in South Carolina without first obtaining an order from this Court allowing her to advertise or solicit business in this state. Before seeking an order from this Court to either allow her to seek admission or to advertise or solicit, respondent shall complete the South Carolina Bar’s Legal Ethics and Practice Program Ethics School and Advertising School. Respondent shall pay the costs of the investigation and prosecution of this matter by ODC and the Commission within thirty (30) days of the date of this order.”

Bottom line: For the second time this year (the first was Berger in April, which I blogged about here: https://jcorsmeier.wordpress.com/2014/04/11/south-carolina-supreme-court-bans-florida-lawyer-from-practicing-law-who-solicited-over-the-internet-and-represented-clients-in-that-state/, the South Carolina Supreme Court has “debarred” a Florida lawyer from practicing law in that state for targeting SC residents on the internet and other forms of advertising, false advertising, and false statements in the disciplinary investigation and violating SC Bar rules, this time permanently.

Let’s 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
http://www.jac-law.com

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Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising rules, Lawyer disbarment, Lawyer discipline, lawyer discipline for failure to respond to complaint, Lawyer disciplined in state where not admitted, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer false statements, Lawyer false statements in response to Bar complaint, Lawyer misrepresentation, Lawyer sanctions, Lawyer websites

New Jersey Federal District Court states that lawyers may not post excerpts from judicial opinions complimenting the quality the lawyers’ work on their websites

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of a judge in the Federal District Court in New Jersey which upheld a New Jersey advertising Guideline which stated that a lawyer or law firm “may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.”  The opinion is Dwyer v. Cappell, Civil Case No. 12-3146 (FSH) (U.S. Dist. Ct. District of New Jersey) (June 26, 2013).  The federal court opinion is here: http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2012cv03146/274778/48/0.pdf?ts=1372347583 

According to the federal judge’s opinion, a state judge sent correspondence in 2008 to a lawyer (Andrew Dwyer) requesting that the lawyer remove a quote from one of his judicial opinions from his law firm’s website within which he stated, inter alia, that the lawyer was an “exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me.”  The lawyer refused to remove it (for whatever reason) so the judge referred the matter to the New Jersey Committee on Attorney Advertising, which considers ethics issues and renders advisory opinions related to the state’s lawyer advertising rules for review.

On May 15, 2012, the New Jersey advertising committee issued Attorney Advertising Guideline 3, stating that “an attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.”

The New Jersey Supreme Court adopted the Guideline and, in a comment published with the Guideline, noted that Rule 7.1(a) of the state’s Rules of Professional Conduct (which essentially follows the ABA Model Rules of Professional Conduct) prohibits misleading statements and “(t)he committee finds that such quotations or excerpts, when taken out of the context of the judicial opinion and used by an attorney for the purpose of soliciting clients, are prohibited judicial endorsements or testimonials….(a)s such, these quotations or excerpts from a judicial opinion in attorney advertising are inherently misleading in violation of RPC 7.1(a).”  Guideline 3 and the comment are here:  http://www.judiciary.state.nj.us/notices/2012/n120518a.pdf

Guideline 3 was to become effective on June 1, 2012; however, on May 30, 2012, the lawyer filed a complaint in the U.S. District Court for the District of New Jersey seeking to enjoin enforcement of Guideline 3 as an unconstitutional restriction on his First Amendment free speech rights.  The opinion states that “Guideline 3 is not a ban on speech but is instead a disclosure requirement, because it requires full disclosure of a judicial opinion.” Further, Guideline 3 met the reasonableness test set out by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), wherein the Court found that a disclosure requirement on attorney advertising speech is constitutional as long as it is reasonably related to the state’s interests in preventing consumer deception.

According to the opinion, “(a) judicial quotation’s potential to mislead a consumer is self-evident (and)…(w)ithout the surrounding context of a full opinion, judicial quotations relating to an attorney’s abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system.” 

The opinion concluded that “the disclosure requirements of Guideline 3 are reasonably related to the state’s interest in preventing the deception of consumers and preserving public confidence in the impartiality of the judiciary; moreover, Guideline 3’s requirements are not unduly burdensome, as they simply require the full context surrounding a judge’s evaluation of a lawyer.”

Bottom line:  This opinion (and the NJ Guideline) seems to stretch the meaning of “disclosure” and the advertising restriction/disclosure seems somewhat over the top since it assumes that someone could be “misled” by an accurate quote from a judicial opinion.  I am also not entirely sure why the judge was upset and why the lawyer didn’t just take the quote down.

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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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising judicial opinion excerpts on website, Lawyer advertising rules, Lawyer Professionalism, Lawyer websites

Florida Bar’s Standing Committee on Advertising issues proposed advisory opinion which cautions lawyers against using “hidden text” or another firm’s name in a website page “metatag”

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent draft Proposed Advisory Opinion A-12-1 by the Bar’s Standing Committee on Advertising which cautions lawyers on certain search engine optimization (SEO) tactics for websites, including using “hidden text” and using another law firm’s name in a website page “metatag”.  The proposed opinion is at: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/9300b4f07c0c029785257b39004717f1!OpenDocument

According to the proposed advisory opinion, “(w)ebsites used to promote a lawyer or law firm are subject to the lawyer advertising rules. Rule 4-7.11(a).  Lawyers are prohibited from engaging in ‘deceptive or inherently misleading advertising.’  Rule 4-7.13. Included within the prohibition is any advertisement that ‘implies the existence of a material nonexistent fact.’ Rule 4-7.13(a)(3). The Committee is of the opinion that certain website content and the use of certain internet search engine optimization techniques can be false, deceptive or misleading conduct that is prohibited by Rule 4-7.13. Examples include ‘hidden text’ or ‘meta tags’ that use another lawyer’s or law firm’s name without a proper purpose, a false representation that a law firm has an office in a particular location when the lawyer does not have an office at that location, or representing that a lawyer handles cases in an area of practice that the lawyer or firm does not practice.

“The intent of this opinion is to educate attorneys on the prohibited use of false, deceptive and/or misleading content or techniques in the design and optimization of their websites and to provide some examples. First, it is entirely acceptable to employ website design, content and search engine optimization techniques in law firm websites as a method of marketing legal services and educating the public about a particular law firm, its attorneys, and its practice. In doing so, law firms must take care to comply with the Rules Regulating the Florida Bar in the design, content and optimization of their websites. This advisory opinion is intended to provide some guidance to attorneys in this rapidly changing media.”

“One specific example of false, deceptive and misleading search engine optimization techniques would be the use of ‘hidden text’ that is not visible to the human eye but is visible to search engines. Such ‘hidden text’ would almost always be inherently false and misleading. Major search engines such as Bing and Google discourage the use of hidden text as a form of spam used to ‘artificially inflate search engine ranking,’ consider it a form of deception, and lower the rankings of websites who use hidden text.”

“Another example of a false, deceptive or misleading technique would be the use of another lawyer’s name or the name of another law firm in a firm’s website when the firm has no legitimate connection, relationship or history with that lawyer or law firm and the reference is purely intended to unfairly manipulate search engines in favor of the firm’s website by using the name of another firm or lawyer. Yet another example of prohibited techniques would be the use of false, deceptive or misleading meta tags on a website. Like hidden text, meta tags are not visible to viewers, but search engines read meta tags, which are properly used to optimize internet search result positions. While the use of meta tags is not prohibited, the use of false, deceptive or misleading meta tags is prohibited.”

“The same analysis applies when lawyers purchase advertising on a search engine keyed to specific words or phrases, e.g. buying Google Adwords. Lawyers may not purchase the name of another lawyer or law firm as a key word in search engines so that the lawyers’ advertisement or sponsored website link appears when a person uses the other lawyer or law firm’s name as a search term.”

“The above are merely examples of the type of website design and optimization techniques that are considered false, deceptive and/or misleading. Lawyers may not use any content or text, including but not limited to hidden text or meta tags, to deceive or mislead the public. Because lawyers themselves often do not construct their own websites, lawyers should take steps to assure that their website designers and optimizers are aware of the Rules Regulating the Florida Bar and that they use techniques and content that are neither false nor misleading and that conform to ethical practices. The Committee strongly encourages lawyers to provide copies of the lawyer advertising rules to their website designers.”

According to the Bar’s notice, the committee will consider any comments received at its meeting during The Florida Bar’s Annual Convention on Thursday, June 27 at 2 pm at the Boca Raton Resort & Club.  Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why The Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Any 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: This proposed advertising advisory opinion is not final and if you would like to comment on its content, you can direct it to Elizabeth Tarbert as indicated above.

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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