Category Archives: misleading advertisement

Florida Bar Board of Governors Ethics Committee will reconsider proposed revised Bar rules to prohibit misleading digital advertising

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar Board of Governors’ (BOG) Professional Ethics Committee’s review of a proposal to amend Florida Bar Rule 4-7.13 to prohibit certain misleading digital advertisements at its December 2018 meeting.  A December 1, 2018 Florida Bar News article on the topic is here:  https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2Faac68d1f3167d80a85258347004f574f

The BOG Review Committee on Professional Ethics has scheduled a review of proposed Florida Bar Rule 4-7.13 revisions to address a common digital advertising practice known as search engine optimization offered by Google AdWords which allows an advertiser to use a competitor’s name to drive search engine traffic to the advertiser’s website.

The BOG ethics committee previously narrowly voted down a proposal to add Bar Rule 4-7.13(c) at its June 2018 meeting which would have stated that “it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the internet or other media, including directly or through a group advertising program.”

The proposed rule to be reviewed by the BOG ethics committee contains an alternative proposal that would prohibit  advertisements from stating or implying that a lawyer is affiliated with the advertising lawyer or law firm in a way that misleads a person searching either for a particular lawyer or law firm or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

The proposed rule revision is below with the new language in italics.

RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING ADVERTISEMENTS

(b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain:

(11) a statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

Bottom line:  This proposed revised advertisement rule revision would address a common digital advertising practice known as search engine optimization offered by Google AdWords which allows an advertiser to use a competitor’s name to drive search engine traffic to the advertiser’s website, which has been alleged to be a violation of the Florida Bar 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.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Indiana ethics opinion finds that AVVO Advisor services may violate referral, fee splitting, and advertising rules

Hello everyone and welcome to this Ethics Alert which will discuss recent (April 2018) Indiana Ethics Opinion 1-18 which found that AVVO’s client referral services may violate Indiana Bar rules related to fee sharing with a non-lawyer, improper referral fees to a non-lawyer entity, potentially misleading communications, and the lawyer’s obligations related to professional independence and disclosure of limited representation. The Indiana ethics opinion is here:  https://www.in.gov/judiciary/discipline/files/dc-opn-1-18.pdf

The ethics opinion describes and summarizes the AVVO Advisor program (and any other similar online non-lawyer legal referral services) business model as follows:

Technology and increasing competition in the legal profession and business in general have driven the expansion of a variety of online legal services. Significant growth has been apparent among online service providers offering consumers fixed-fee, limited scope services provided by local attorneys. Typical business models set a fixed fee for various legal services with a local attorney performing the actual legal work. The company, not the attorney, defines the types of legal services offered, the scope of the representation, the fees charged, and other parameters of the legal representation.

Common features of these arrangements include: 1) prearranged fees established by the online company; 2) a “marketing fee” received by the online company; 3) addition of a local attorney to a database accessible to and used by the prospective client to select the attorney; and 4) a caution from the online company that an attorney may decline representation, but that repeated refusals could result in the removal of the attorney’s name from the database.

According to the AVVO webpage, “Avvo Legal Services is currently available in these US states: Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Nevada, New Hampshire, North Carolina, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Utah, Virginia, Washington, and Wisconsin.” The listed practice areas include:  “Bankruptcy and debt, Business, Criminal defense, Divorce and separation, Family, Estate planning, Immigration, Landlord or tenant, Real estate” and states “If you need to update your practice area percentages, simply edit your Avvo profile.”

Under the AVVO Advisor business model, the potential client visits the AVVO website, selects the legal services needed, and pays Avvo a fixed fee.  Avvo then arranges for an “experienced lawyer” to return the prospective client’s call “within minutes.”  If a lawyer decides to participate, he or she agrees to provide certain legal services for a fixed fee.  Examples include a $39.00 flat fee for a “15-minute Family advice session”; a $995.00 flat fee for filing of an “uncontested divorce”; and a $295.00 flat fee for creating a “last will and testament”.

After the lawyer provides the legal services, Avvo sends the lawyer “100% of the client’s payment” and the lawyer sends to AVVO,  “(as) a completely separate transaction”, a “per-service marketing fee.”  According to AVVO’s “Attorney FAQ for Avvo Legal Services”, “Prices for these (legal) services vary from $295 for services like creating a last will and testament (individual), up to $2995 for preparing and filing a family green card application. Any applicable filing fees are not included in the price of the service; clients should pay those separately”.

“You (the lawyer) pay a marketing fee. As a separate transaction, we withdraw a per-service marketing fee from your withdrawals account. Fees are $40 – $400, depending on the service.”  The Attorney FAQs also state that “Attorneys in Florida who offer 15-minute advice sessions must carry at least $100,000 in legal malpractice insurance. This requirement does not currently apply to document review or start-to-finish services.”

Bottom line:  Indiana has now joined a lengthening list of jurisdictions which have published ethics opinions stating that the “AVVO Advisor” business model may violate lawyer ethics rules, including, in this opinion, the Indiana Bar rules related to fee sharing with a non-lawyer, payment of referral fees to a non-lawyer entity, potential misleading communications, and the lawyer’s obligations related to professional independence and disclosure of limited representation.  Other jurisdictions may publish ethics opinions in the future.  Stay tuned…

…and be very 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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