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The client is missing and the statute of limitations expires soon:  what can or must a lawyer do?

Hello everyone and welcome to this Ethics Alert, which will discuss the ethics issues when a client is missing (or refuses to communicate) and the statute of limitations is about to expire.  I have been asked this question (or a variation of it) many times in my over 30 years of practice and I have provided guidance to lawyers.  Florida Bar Ethics Opinion 72-36 RECONSIDERATION) July 1, 1987 addresses this issue and the opinion is here: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-36-Rec.pdf

In the initial Ethics Opinion 72-36 (published in 1972), the facts were that “the inquiring attorney was retained by his client under a contingent fee contract in a personal injury matter. The client disappeared sometime after retaining the attorney and before suit was filed. Two years passed and, despite his diligent efforts, the attorney was unable to locate the client. The attorney asked whether he was ethically obligated to file suit before the limitations period expired.”

The initial opinion stated that “the attorney’s duty of zealous representation required him to take whatever action was necessary to prevent loss of the client’s rights due to the passage of time. Specifically, the attorney was obligated to file suit unless he could obtain the opposing party’s agreement to waive the statute of limitations.”  Emphasis supplied.

After the Florida Ethics Opinion was published in 1972, ABA Informal Opinion 1467 was published, which stated that the ABA Committee on Ethics and Professional Responsibility had determined that an attorney has no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect.

After the ABA Informal Opinion was published, the Florida Bar’s Professional Ethics reconsidered Ethics Opinion 72-36.  After reviewing the facts and Informal Opinion 1467, the committee stated:

“The Committee is now in accord with the conclusions reached in ABA Informal Opinion 1467. There, the attorney’s reasonable efforts to locate the client had been unsuccessful and the attorney believed there was no reasonable likelihood that the client would return. The ABA Committee on Ethics and Professional Responsibility determined that the attorney had no duty to file suit to toll the statute of limitations if the client’s unavailability was not caused by the attorney’s neglect. The ABA committee further stated that it was not improper for an attorney to include in his employment agreement a provision requiring the client to promptly notify the attorney of any change in address and providing that, if the client failed to so notify the attorney, the attorney was not obligated to proceed with the case.

In view of ABA Opinion 1467, the Professional Ethics Committee is now of the opinion that an attorney whose client cannot be located despite the attorney’s reasonable efforts is not obligated to file suit to toll the running of the statute of limitations if the client’s unavailability is not caused by the attorney’s neglect or inaction (see Rule 4-1.3, Rules Regulating The Florida Bar, requiring an attorney to act with reasonable diligence and promptness in representing a client) and: (1) the attorney believes there is no reasonable chance the client will return; or (2) the client’s unavailability is a breach of the attorney-client employment agreement. However, even in these situations it would not be unethical for the attorney to file suit in order to toll the statute of limitations.”

The executive summary of Ethics Opinion 72-36 (RECONSIDERATION) states:  “A lawyer retained for litigation by a client who has since disappeared is not obligated to file suit to toll the running of the statute of limitations if the lawyer has made a reasonable effort to locate the client and the client’s unavailability is not the result of neglect on the part of the lawyer.”

Bottom line:  Although ethics opinions are for guidance only and are not binding, the Florida Ethics Opinion (and the ABA Informal Opinion) makes it clear that al lawyer is not required to file a lawsuit on behalf of a client when the client is unavailable and cannot be located, even if the statute of limitations will run; however, the lawyer is also not ethically prohibited from filing the lawsuit.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under ABA Informal Opinion 1467- filing lawsuit when client is missing, Attorney Ethics, Florida Bar, Florida Bar Ethics Opinion 72-36 - filing lawsuit when client is missing, joe corsmeier, Joseph Corsmeier, Lawyer diligence, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer negligence, Uncategorized

Florida Bar Board of Governors finds that “Ambulances Chase Us” is improper and law firm can advertise “1-800-411-Pain”

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG) decisions to uphold the Florida Bar Standing Committee on Advertising (SCA) decision that “Ambulances Chase Us” is deceptive or misleading and reverse an SCA decision that a law firm’s billboards advertising the telephone number “1-800-411-PAIN” are misleading.

At its September 20, 2019, the BOG voted to uphold an SCA decision that the slogan “Ambulances Chase Us ”is deceptive or misleading under Rule 4-7.13(a) because it is “both unethical and illegal for ambulance drivers to solicit cases for lawyers and because it is factually and legally inaccurate.”

The Board Review Committee on Professional Ethics (BRC) voted to uphold the SCA finding that the advertisement is impermissible.  The BOG voted 18-14 to uphold the SCA finding.

At the same meeting, the BOG also voted, without debate, to reverse an SCA determination regarding billboards that advertise the telephone number “1-800-411-PAIN.”  As background, the SCA had voted to find that billboards are misleading under Bar Rule 4-7.13(a) because the advertisements are on behalf of the private law firm but advertise the telephone number “1-800-411-Pain” in North and Southwest Florida which was used by the now-defunct lawyer referral service called 1-800-411-Pain.  The telephone number is also currently being used by a new qualifying provider/lawyer referral service called “Path” in Southeast and Central Florida.

The law firm had argued, inter alia, that the advertisements were not misleading because they clearly show the law firm’s name. The law firm also stated that, at the BRC’s request, it will answer the telephone with the law firm’s name.

Bottom line:  There was apparently some discussion at the BOG meeting that the “Ambulances Chase Us” slogan was just an attempt at humor and was not misleading and the final 18-14 BOG vote was very close.  The 411 Pain vote reverses the SCA determination that the use of the telephone number was misleading.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Florida lawyer advertising "411-Pain", Florida lawyer advertising "Ambulances Chase Us", Florida Lawyer Advertising opinions, Florida Lawyer advertising rules, Lawyer advertising, Lawyer advertising rules, Uncategorized

The Florida Bar’s Board of Governors votes to recommend a voluntary registration program for online legal service providers

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Bar Board of Governors (BOG) decision to recommend a voluntary registration program for online legal service providers.

The BOG voted unanimously at its meeting on September 20, 2019 to approve “Chapter 23, Registered Online Services”.  The program was first considered by the BOG Committee on Technologies Affecting the Practice of Law and, if implemented, would allow online legal service providers to market themselves as “Registered with The Florida Bar” if they agree to follow certain requirements, including submitting to the jurisdiction of Florida for the resolution of consumer complaints.

According to Florida Bar President, John Stewart, the proposed program would apply to entities that are “already operating in a largely unregulated environment”.  The program would also require online providers to provide The Florida Bar with copies of all consumer complaints, indicate how they were resolved, and provide a certification that the provider understands that the “registration and revocation of the registration . . . is solely at the discretion of The Florida Bar.”

The proposed program would also require that registered online providers use only forms that have either been approved by the Florida Supreme Court or reviewed and approved by lawyer and a member of The Florida Bar. The registered online legal service providers would also be required to advise consumers of the type of form that they are providing.

The BOG was scheduled to take final action on the proposal at the July 2019 meeting in Key Largo; however, this was postponed due to a lack of time. The proposed program was also publicly noticed multiple times and received no comments. The proposed program will now be sent to the Supreme Court for consideration and potential implementation.

Bottom line:  This proposed program to related “online legal service providers” is voluntary (and would presumably create a safe harbor if the requirements were followed); however, it may also be a step toward the actual regulation of such entities.  In addition, if the program is approved by the Florida Supreme Court, the online entities could market themselves as “Registered with The Florida Bar” if they follow the program requirements, including submitting to the jurisdiction of Florida for the resolution of consumer complaints  This may provide an incentive for such entities to participate in the program.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under Attorney Ethics, Florida Bar, Florida Bar Board of Governors online legal provider registration program, Florida Bar Chapter 23, Registered Online Services, Florida Supreme Court, Florida voluntary online legal providers program, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Iowa lawyer suspended for 4 months without possibility of reinstatement for misappropriating fees from his law firm

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Iowa Supreme Court opinion which suspended a lawyer for 4 months without the possibility of reinstatement for misappropriating fees from his law firm and stated that “(w)e think the time has come to ratchet up the disciplinary sanctions for nonclient theft.”  The case is Iowa Supreme Court Disciplinary Board v. Curtis Den Beste, No 19-0360.  The September 13, 2019 Iowa Supreme Court opinion is here: https://www.iowacourts.gov/courtcases/7209/embed/SupremeCourtOpinion.

The lawyer began practicing law in Iowa in 2000.  He received an offer in 2007 to practice with a law firm and entered into an agreement with the law firm regarding fees.  The agreement required him to deposit all earned client fees into the firm trust account or the general/operating account and he would be paid fifty percent of the earned fees and the firm would keep the remainder.

Beginning in 2015, the lawyer accepted cash payments for fees from some clients and kept the fees instead of depositing them as required by his agreement with the firm.  According to the opinion, after his misconduct was discovered, “(the lawyer) agreed to self-report his misconduct to the disciplinary board and to provide an accounting of the diverted funds as well as a repayment plan.”

The lawyer’s accounting (which was confirmed by the Iowa Bar/Disciplinary Board) showed that he received a total of $18,200.00 and, after for the fifty-percent split and other tax and reimbursement considerations, the lawyer wrongfully misappropriated $9,200.00 from the law firm.

“It is certainly true that, in many cases, fee disputes between a lawyer and his or her current or former law firm might simply be contract disputes and nothing more. For example, a lawyer with a good-faith claim to fees should not be sanctioned merely for exercising or asserting such a claim. But not all fee disputes between a lawyer and a law firm are garden variety contract disputes. Some involve outright and undisputed theft. In such cases, the imposition of discipline is clearly appropriate.”

“The question then arises whether theft from a client is more serious than theft from a law firm or other third party. In our prior cases, the difference has often been dramatic. Theft of any amount by a lawyer from a client ordinarily results in revocation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 925 N.W.2d 163, 170–71 (Iowa 2019); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500–01 (Iowa 2017). But theft of funds from a law firm can result in much lesser sanctions. Henrichsen, 825 N.W.2d at 529–30.”

“There are, perhaps, some reasons for the distinction between client theft and law firm theft. For instance, many clients have little power against a lawyer in whom the client places trust. A lawyer who steals from a client is preying on those often in an extremely vulnerable position who have placed trust in the lawyer and advanced funds to the lawyer to protect their interests. The relationship between a law firm and a lawyer ordinarily will have less of a power imbalance. The firm is in a better position, perhaps, than a client to monitor the proper handling of fees.”

“Yet, a lawyer who acts dishonestly toward an employer raises serious questions of whether the lawyer has the necessary integrity to practice law.”

“(W)e think the time has come to ratchet up the disciplinary sanctions for nonclient theft. That said, this case may not be the appropriate case to do so. In particular, given our caselaw, Den Beste was not on notice that he faced a possible revocation when he entered into the stipulation in this case. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cepican, 861 N.W.2d 841, 845 (Iowa 2015) (finding the attorney did not waive his right to contest a complaint of theft-based misconduct by failing to respond because he did not receive adequate notice of the allegation of theft). Thus, we rely on our precedent and impose a sanction in this case consistent with our prior cases. At the same time, we use this case as a vehicle to put the bar on notice that an attorney who steals from a law firm without a colorable claim may well incur stiffer disciplinary sanctions than have been imposed in our past cases.”

Thus, we rely on our precedent and impose a sanction in this case consistent with our prior cases. At the same time, we use this case as a vehicle to put the bar on notice that an attorney who steals from a law firm without a colorable claim may well incur stiffer disciplinary sanctions than have been imposed in our past cases.

“Upon full consideration of this matter, we order that the license of Curtis W. Den Beste to practice law in Iowa be suspended indefinitely with no possibility of reinstatement for a period not less than four months, effective with the filing of this opinion.”

A dissenting justice would have revoked the lawyer’s license to practice law.

“On multiple occasions, Den Beste knowingly embezzled money from his law firm and then attempted to conceal what he had done. He had no colorable claim to nor was there any fee dispute regarding that money. “[I]t is almost axiomatic that the licenses of lawyers who convert funds entrusted to them should be revoked.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Irwin, 679 N.W.2d 641, 644 (Iowa 2004). Accordingly, I would revoke Den Beste’s license to practice law.”

Bottom line:  The opinion discusses the differences between law firm theft and theft from the client and others.  The Iowa Supreme Court has provided notice to lawyers that future law firm theft will result in stiffer disciplinary sanctions than in the past.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney discipline, Attorney Ethics, deceit, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer criminal conduct, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misappropriation, Lawyer misappropriation of fees, Lawyer stealing from law firm, Misappropriation from law firm suspension, Uncategorized

ABA formal ethics opinion provides guidance for recusal of judge because of a personal relationship

Hello everyone and welcome to this Ethics Alert, which will discuss ABA Formal Opinion 488, which provides guidance on a judge’s obligation to recuse because of a social or close personal relationship with a lawyer or party.  ABA Formal Opinion 488 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_488.pdf

According to the opinion, which was released on September 5, 2019, a judge is not required to automatically recuse or be disqualified if a lawyer or party in a matter before the judge is an acquaintance or friend; however, recusal or disqualification is necessary when the judge is in a close personal relationship with a lawyer or party in a matter.

Formal Opinion 488 interprets the Model Code of Judicial Conduct Rule 2.11, which requires judges to identify situations where their impartiality might reasonably be questioned—an age-old and fluid determination, beyond the specific provisions in Rule 2.11(A)(1)-(6).  The opinion states “that relationships vary widely, potentially change over time, and are unique to the people involved.” As such, the opinion trifurcates judge’s social interactions and relationships into (1) acquaintanceships; (2) friendships; and (3) close personal relationships.

Rule 2.11(A)(1) addresses the standard of when “impartiality might reasonably be questioned.” In addition, Rule 2.11(A)(2) specifies situations where “the judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.”

The opinion notes that a judge must recuse or be disqualified when the judge has or pursues a romantic relationship with a lawyer or party in a matter; however, other “close personal relationships” (such as amicably divorced individuals who maintain joint custody), require that the judge follow Rule 2.11(C), which permits disclosure and waiver of the recusal.

Under Rule 2.11(C), a judge subject to disqualification because of a friendship or close personal relationship may disclose on the record the basis of the potential disqualification and ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive the disqualification.  If the parties and lawyers agree after the disclosure (and without participation by the judge or court personnel), that the judge should not be disqualified, the judge may participate in the proceeding. The stipulation must be incorporated into the record of the proceeding.

The opinion states that a close personal relationship is covered by Rule 2.11(A)(2) and requires disqualification, but acquaintances do not.  Further, whether friendships should result in disclosure and recusal depends on the specific facts. The opinion does not address social media (such as Facebook “friendships”) and states that interaction on social media does not itself indicate the type of relationship participants have with one another either generally or for purposes of the opinion.

Bottom line:  This opinion provides guidelines for judges (and lawyers) on a judge’s obligation to recuse (or be subject to disqualification) because of a social or close personal relationship with a  lawyer or party.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under ABA formal opinions, ABA opinion 488 recusal of judge because of personal relationship, joe corsmeier, Joseph Corsmeier, Judicial ethics, Uncategorized

Utah Supreme Court approves pilot program to permit non-traditional legal services, including non-lawyer firm ownership

Hello everyone and welcome to this Ethics Alert, which will discuss the unanimous Utah Supreme Court approval of a pilot program to permit non-traditional legal services, including non-lawyer firm ownership.  The report of the Utah Work Group on Regulatory Reform titled Narrowing the Access-To-Justice Gap by Reimagining Regulation is here:  https://www.utahbar.org/wp-content/uploads/2019/08/FINAL-Task-Force-Report.pdf

In an opinion dated August 29, 2019 (which is not yet published), the Utah Supreme Court voted unanimously to approve the recommendations of the work group which called for “profoundly reimagining the way legal services are regulated in order to harness the power of entrepreneurship, capital, and machine learning in the legal arena.”

The work group proposed the creation of a new structure in Utah for the regulation of legal services that would provide for broad-based investment and participation in business entities that provide legal services, including non-lawyer investment in and ownership of these entities.  The report stated that this goal should be achieved in two ways:

  1. Substantially loosening regulatory restrictions on the corporate practice of law, lawyer advertising, solicitation, and fee arrangements, including referrals and fee sharing and;
  1. Simultaneously establishing a new regulatory body, under the supervision of the Supreme Court, to advance and implement a risk-based, empirically-grounded regulatory process for legal service entities.

The Utah Supreme Court’s approval of the recommendations begins the first stage the report’s recommendations, which includes the creation of an implementation task force that will establish the new regulatory body as a pilot program that will be in place for about two years. The regulatory body will work with the Utah State Bar, which will continue to maintain its authority over lawyers and licensed paralegal practitioners (LPPs) and regulate non-traditional legal services which is not currently allowed under Utah’s rules.

Stage one of the plan also includes the creation of a “regulatory sandbox” which will be managed by the new regulating body, and will allow a limited market of non-traditional legal entities to provide legal services in the state. According to the report, “The goal is to allow the Court and aspiring innovators to develop new offerings that could benefit the public, validate them with the public, and understand how current regulations might need to be selectively or permanently relaxed to permit these and other innovations.”

The report also requested the Supreme Court to order three changes that would allow the pilot to operate as part of the first stage, including:

  1. Creation of the regulating body as an implementation task force of the court and delegate regulatory authority to set up and run the regulatory sandbox;
  2. Establish that providers approved to participate in the regulatory sandbox are not engaged in the unauthorized practice of law in Utah; and
  3. Establish that lawyers will not be subject to discipline for entering into business with or otherwise providing services with providers in the sandbox.

The court has not issued a written order and a Utah Supreme Court Justice who was on the Task Force stated that he expects the court to issue a press release soon providing further details.

As I previously blogged, the Utah Supreme Court previously approved Limited License Practitioner Rules which became effective November 1, 2018 and the first LLPs in Utah were expected to be licensed in 2019.  This makes Utah the most recent state to license non-lawyers to practice law and will allow LLPs practice without a lawyer’s supervision in three areas, including matters involving temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change, matters involving forcible entry and detainer, and debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.  LLPs will not be permitted to appear in court on behalf of a client.

Bottom line:  This is a very significant step toward the acceptance of non-traditional and non-lawyer practice in Utah and in the United States.  All of the states which have approved such rules are in western states, so far.  The beat goes on…stay tuned.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under 2018 Utah rules permitting non-lawyer legal practice, 2019 Utah pilot program permitting non-traditional legal services, including non-lawyer firm ownership, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer sharing fees with non-lawyers, Non-lawyer ownership, Non-lawyer ownership of law firms, Non-lawyer practice of law, Non-lawyer practicing law, Uncategorized

Florida Bar Board of Governors approves Bar rule revision prohibiting misleading law firm information in all advertisements

Hello everyone and welcome to this Ethics Alert, which will discuss the Florida Bar Board of Governors (BOG) approval of revisions to Florida Bar Rules 4-7.13 which would prohibit misleading law firm information in advertisements.

The BOG unanimously approved the proposed rule revisions amending Florida Bar Rule 4-7.13 to prohibit misleading digital advertisements.  As I previously reported, the BOG ethics committee previously voted down a proposal to add Bar Rule 4-7.13(c) 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 revised Bar rule does not address purchasing a competitor’s name through Google AdWords but would prohibit all 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.

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.

The revised rule also includes a subsection (12) setting forth “Examples of Deceptive or Inherently Misleading Advertisements.”

(12)  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 knowingly contact a different lawyer or law firm.

The Florida Bar will now file a Petition including revised Rule 4-7.13 will now be filed with the Florida Supreme Court, which will review it and determine whether to implement the proposed rule.

Bottom line:  As I previously blogged, if the BOG takes final action on the proposed revised Rule 4-7.13 prohibiting all of these types of misleading advertisements (and if the Florida Supreme Court implements the revised rule), this would be consistent with other jurisdictions that have considered the issue.

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.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Please note:  My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683.  All other contact information remains the same.

Joseph Corsmeier

about.me/corsmeierethicsblogs

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

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Filed under Attorney Ethics, Florida Bar, Florida Supreme Court, Lawyer advertising, Lawyer advertising and solicitation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer using GoogleAd words to misdirect users, Uncategorized