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ABA issues Formal Ethics Opinion 483 providing ethics guidance to lawyers before and after a cyber breach or hack

Hello everyone and welcome to this Ethics Alert which will discuss recent (October 17, 2018) American Bar Association Formal Opinion 483 which provides guidance to lawyers before and when there has been a cyber breach or hack.  The opinion is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_op_483.pdf

Just like to rest of our digital world, lawyers are susceptible to cyber hacking/breaches when using digital devices and programs or otherwise using the internet.  The ABA Opinion confirms the duty that lawyers have to attempt to prevent such hacks and breaches and also the lawyer’s obligation to notify clients of a data hack/breach.

The opinion provides the reasonable steps that lawyers can take to meet their obligations under the ABA model rules and emphasizes the importance for lawyers to plan for an electronic breach or cyberattack and discusses how model rules may apply when an incident is either detected or suspected. According to the opinion, the following Model Rules of Professional Conduct would potentially apply:

Rule 1.1 (competence), requiring lawyers to develop sufficient competence in technology to meet their obligations under the rules after a breach; Rule 1.15 (safekeeping property), requiring lawyers to protect trust accounts, documents and property the lawyer is holding for clients or third parties; Rule 1.4 (communication), requiring lawyers to take reasonable steps to communicate with clients after an incident; Rule 1.6 (confidentiality), regarding issues of confidentiality in the client-lawyer relationship; Rule 5.1 (lawyer oversight), which sets forth the responsibilities of a managing partner or supervisory lawyer and; Rule 5.3 (nonlawyer oversight), which sets forth the responsibilities of supervisors who are nonlawyers.

The opinion states that “(w)hen a breach of protected client information is either suspected or detected, Rule 1.1 requires that the lawyer act reasonably and promptly to stop the breach and mitigate damage resulting from the breach…(h)ow a lawyer does so in any particular circumstance is beyond the scope of this opinion.”

“As a matter of preparation and best practices, however, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach. The decision whether to adopt a plan, the content of any plan and actions taken to train and prepare for implementation of the plan should be made before a lawyer is swept up in an actual breach.”

Bottom line:  This ABA opinion addresses and discusses a lawyer’s obligations in attempting to prevent a cyber hack or breach and also provides guidance regarding the lawyer’s obligations if a breach/hack occurs.  All lawyers should be addressing serious issue this now and should consult their state/jurisdiction’s ethics rules to insure compliance.

Be careful out there.

Disclaimer:  this Ethics Alert 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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Florida Bar Board of Governors approves revised rule on qualifying provider fees and ethics opinion on “expert” and “specialist”

Hello everyone and welcome to this Ethics Alert which will discuss recent (October 12, 2018) vote of The Florida Bar’s Board of Governors to approve substantive revisions to Bar Rule 4-7.14 related to the use of “expert” and “specialist” and to approve proposed ethics advisory opinion 17-2, which addresses payment arrangements between lawyers and lawyer referral services (now called qualified providers).    The ethics opinion has been renumbered to 18-1 and the Bar’s notice of the approval of the opinion and requesting comments with a link to the opinion is here:  https://www.floridabar.org/ethics/etprop-advisory/

With regard to the proposed revised Bar Rule 4-7.14, the Board considered a new proposed amendment that is designed to remove the portions of the rule which were found unconstitutional by the federal court judge in 2015.  The proposed revised rule adds new subdivisions to comply to the federal court’s order and also to address the concerns of the Florida Supreme Court, which rejected the Bar’s previous proposed revised rule.

Revised Bar Rule 4-7.14 would allow non-certified attorneys to call themselves “expert” or “specialist” if they can objectively verify that claim based upon the lawyer’s education, training, experience, and “substantial involvement” in the area of practice. The amended rule would also allow law firms to call themselves “experts” or “specialists” if that claim can be objectively verified for at least one lawyer in the firm.  The law firm making the claim would be required to have a disclaimer stating that not all firm members meet the same standards, if there are lawyers who do not qualify.

With regard to Ethics Advisory Opinion 18-1,the Board considered an opinion drafted by the Board Review Committee on Professional Ethics provides that whether a particular payment method between lawyers and qualifying providers f/k/a lawyer referral services is permissible must be determined on a case-by-case basis.  The opinion sets out criteria for determining whether a payment plan is proper and ethical and the ethics opinion is discussed and summarized in the Bar News article here: https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2F06fb4fe9ad6425748525830f004fc60b

The Board considered and approved the ethics opinion at its meeting on October 12, 2018 and will consider any comments at its December 14, 2018 meeting in Naples, Florida.

Bottom line:  The Florida Bar’s Board of Governors has taken further steps to address the issues related to the use of “expert” and “specialist” (and the federal court’s ruling that its application was unconstitutional and issuing an injunction) and also the payment arrangements between lawyers and lawyer referral services/qualifying providers.

Be careful out there.

Disclaimer:  this Ethics Alert 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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Florida Supreme Court adopts substantial revisions to Bar rules related to private lawyer referral services

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent (March 8, 2018) Florida Supreme Court opinion approving amendments to Florida Bar Rule 4-7.22 related to private and for profit lawyer referrals.  The amendments substantially revise the current rule, including the broadening definitions, changing the name of the referral companies to “matching services” and “qualifying providers”, prohibiting fee splitting, and removing the previously required disclaimer that the entity is a lawyer referral service.  The Court’s opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc16-1470.pdf  The rule amendments are effective April 30, 2018, at 12:01 a.m.

Amended Rule 4-7.22 specifically prohibits fee splitting between the referral entities and lawyers and prohibits deceptive, misleading, or false advertising by those entities.  Also, any private entities that connect consumers looking for legal services with lawyers will be called “qualifying providers” regardless of whether they are a “traditional” referral service (ASK-GARY, 411 PAIN) or a technology-based provider (AVVO, LegalZoom).

The Court rejected the Bar’s proposed referral rule amendments in 2015 stating that private referral service entities should only be owned by lawyers.  The Bar filed revised rules in 2016 and the Court issued an Order on May 3, 2017 rejecting the proposed rule revisions and dismissing the Bar’s Rules Petition without prejudice.  That Order stated that the revised rules failed to comply with the Court’s directive that lawyer referral services should be owned or operated only by a member of the Bar and sought to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar.

In its March 8, 2018 opinion, the Court implemented the Bar’s proposed rule amendments but stated that “(the amendments do not) resolve our concern with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident. The findings of the Special Committee (on Lawyer Referral Services) on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm. We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s first recommendation.”

Bottom line:  The Florida Supreme Court has adopted the Bar’s revised referral rule, which will substantially change the current rule; however, the Court has indicated that it continues to believe that services which are owned by non-lawyers and make referrals of both lawyers and other professionals should be prohibited and directed the Bar “to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee (on Lawyer Referral Service)’s first recommendation.”

Lawyers who participates in referrals from a private entity (or is considering doing so), should carefully review the new rules, since the rule requires a lawyer who participates to insure that the private entity is in full compliance with the Bar rule.

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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Virginia Supreme Court makes revisions to lawyer advertising rules which streamline the rules and reduce their number

Hello everyone and welcome to this Ethics Alert which will discuss the recent Virginia Supreme Court opinion which adopted revisions to the Virginia Bar Rules which streamline the lawyer advertising rules and reduce the number of rules.  The Virginia Supreme Court opinion is here: http://www.courts.state.va.us/courts/scv/amendments/part_6_sect_ii_para_7_1_thru_7_5.pdf.  The revised Virginia advertising rules become effective on July 1, 2017.

On April 17, 2017, the Virginia Supreme Court adopted lawyer advertising rules which streamline and reduce the number of rules and should make it easier for Virginia lawyers to market their services without risking disciplinary charges.  Virginia became the first jurisdiction to adopt the revisions recommended by the Association of Professional Responsibility Lawyers (APRL) and later adopted by the American Bar Association (ABA).

The revisions reduce Virginia Bar Rule 7.1 (communications concerning lawyer’s services) to a single paragraph prohibiting false or misleading communications.  The revisions also eliminate Rule 7.4 (communicating fields of practice and certification) and Rule 7.5 (lawyer and law firm names).  Those subjects are addressed in the comments to revised Rule 7.1.

Revised Rule 7.3 (solicitation) incorporates some new language from the APRL’s proposal, but does not incorporate the blanket prohibition against in-person solicitation which is set forth in ABA Model Rule 7.3 and APRL’s draft Rule 7.3.

Some of the rules were not revised or deleted.  Rule 7.3 still requires any advertising materials to have the disclaimer “ADVERTISING MATERIAL” unless the recipient is a lawyer or family member, has had a personal or prior professional relationship with the attorney, has had prior contact with the attorney, or if the materials are pursuant to a court-ordered class action notification.

Bottom line:  These revised Virginia Bar advertising rules substantially streamline and reduce the number of rules.  This appears to be a trend and we will see whether (or when) other jurisdictions follow.  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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Florida Bar Board of Governors agrees with BOG Ethics and Bar Advertising Committees that “Results So Good, You’ll Think It’s Magic!” violates Bar Rules

Hello everyone and welcome to my first Ethics Alert of 2017 which will discuss the recent decision of the Florida Bar’s Board of Governors (BOG) to uphold the opinion of the Bar’s Standing Committee on Advertising (SCA) and the recommendation of the BOG Ethics Committee (BRCPE) that a law firm’s “Results So Good, You’ll Think It’s Magic!” slogan violates the Bar Rules.

According to an article in the January 1, 2017 issue of The Florida Bar News, the SCA had opined that the law firm’s proposed name: “Ticket Wizards”, and a slogan: “Results So Good, You’ll Think It’s Magic!” violated two Florida Bar advertising rules: 1) promising results to potential clients; and 2) characterizing the “skills, experience, reputation, or record” of the firm in a way that the firm could not objectively verify.

After the SCA found against the law firm, it appealed to the BOG.  The BOG considered the matter at its recent meeting in Clearwater and, by a 24-20 vote agreed with the BRCPE and denied the appeal; however, it found the name and the picture of a wizard did not characterize the firm’s experience, skills, reputation, or record.  The BRCPE had recommended that the firm should only be permitted to use the name and image if it could objectively show it is a “master or expert” in that area of practice.  The BOG voted that the law firm could use the name and image if it could objectively verify the implications of the title and picture.

With regard to the slogan “Results So Good, You’ll Think It’s Magic!,” the BOG agreed that the slogan can “reasonably be construed as a prediction of success” and, therefore, it violated the Bar rules. The BOG also found that the slogan violated the rule against characterizing a firm’s “skills, reputation, character, or record “unless it is objectively verifiable.

Bottom line: It appears that the lesson here is that lawyers are prohibited from promising magical results (unless perhaps they are magicians?)…

Happy New Year to you and yours 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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California interim ethics opinion addresses when lawyer blogging is subject to regulation under Bar Rules

Hello everyone and welcome to this Ethics Alert which will discuss lawyer blogging and the interim opinion of the State Bar of California which addresses the topic of lawyer blogging and when lawyer blogs may be subject to regulation under the California Bar Rules and advertising statute.  The interim ethics opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion Interim No. 12-0006 and the opinion is here:  Cal Bar Opinion Interim No. 12-006- lawyer blogging.  The comment period on the interim opinion has expired; however, the opinion has not been finalized.

The interim opinion frames the issue: “Under what circumstances is ‘blogging’ by an attorney a ‘communication’ subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising?”

The interim opinion’s digest section states:

  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both. (emphasis supplied)
  1. A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
  1. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  1. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.

In the discussion section, the opinion recognizes that “(b)y its nature, blogging raises First Amendment free speech issues. Prohibited for most of the 20th Century, advertising by attorneys was found to be protected commercial speech by the U.S. Supreme Court in Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691].  Bates provides that truthful attorney advertising cannot be absolutely prohibited, but may be subject to reasonable restrictions.”

The opinion then provides four examples of attorney blogs and analyzes each of the hypothetical blogs regarding the application of the California Bar Rules and the California advertising statute and concludes that:

“A blog by an attorney will not be considered a ‘communication’ subject to rule 1-400 or an “advertisement” subject to Business and Professions Code sections 6157, et seq., unless the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly, for example, through a detailed description of the attorney’s legal practice and successes in such a manner that the attorney’s availability for professional employment is evident.

A blog included on an attorney’s or law firm’s professional website is part of a ‘communication’ subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

A stand‐alone blog by an attorney on law‐related issues or developments within his or her practice area is not a ‘communication’ subject to the rules regulating attorney advertising unless it invites the reader to contact the attorney regarding the reader’s personal legal case, or otherwise expresses the attorney’s availability for professional employment.

A stand-alone blog on law-related issues maintained by an attorney that is not part of the attorney’s professional website is not ‘communication’ subject to attorney advertising regulations unless the blog indicates the attorney’s availability for professional employment.

A non-legal blog by an attorney is not a ‘communication’ subject to the rules or statutes regulating attorney advertising, even if it includes a hyperlink to the attorney’s professional web page or contains biographical or contact information. However, the biographical or contact information itself may be subject to the rules and statutes.”

The general consensus among the jurisdictions (including Florida) would appear to be that, if the lawyer’s blog is primarily educational and/or informational in nature and not primarily for obtaining employment, it is not subject to advertising regulation (see NYSBA Ethics Op. 967 (6/5/13) here: NYSBA Ethics Op. 967).

This California interim opinion states that: “”(b)logging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through a description of the attorney’s legal practices and successes in such a manner that the attorney’s availability for professional employment is evident.” (emphasis supplied).  The opinion does not address whether blogs which are primarily for educational and informational purposes are subject to regulation even if it also expresses the attorney’s availability for professional employment.

Bottom line:  Lawyer blogs are subject to state Bar regulations only to the extent that the regulations do not violate the lawyer’s federal constitutional First Amendment free (commercial) speech rights; however, lawyers who blog must research the requirements of their state advertising rules, ethics opinions, and other sources to insure compliance with those state regulations.  To the extent that those rules may violate the lawyer’s First Amendment free (commercial) speech rights, the lawyer could consider a constitutional challenge.

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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The Florida Bar will file petition with advertising rule amendment regarding lawyer’s use of “expert” and “specialist” on October 15, 2016

Hello and welcome to this update of the May 25, 2016 Ethics Alert regarding the proposed amendment to Florida Bar Rule 4-7.14 with new subsection 4-1.14(a)(5) related to claims of “specialization” and “expertise” in advertisements.  The BOG approved the rule amendment and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals and the new Rule 4-7.14(a)(5) language is below:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

(a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(5) a statement that a lawyer is a specialist, an expert, or other variations of those terms unless:

(A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization;

(C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization; or

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

The new subsection in Rule 4-7.14(5)(a)(D) states that a lawyer is prohibited from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  In addition, if the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”

According to the Bar’s filing notice: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  As I previously said, it remains to be seen whether the Florida Supreme Court will approve the amendment as drafted and, if it does, whether the restrictions in the amended Bar rule on their face and as applied are in compliance with the federal district judge’s 9/30/15 order finding that the previous rule violated the United States Constitution.  The Order here: 9/30/15 J. Hinkle Order and Injunction.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway N., Suite 150

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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