Tag Archives: Bar ethics rules

Florida Bar’s Board of Governors will consider ethics opinion addressing fee arrangements of qualifying providers and participating lawyers

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar Board of Governor’s (BOG) direction to its ethics committee to prepare a draft advisory opinion addressing fee arrangements between qualifying providers and participating lawyers which comply with amended Florida Bar Rule 4-7.22, which substantially revises the requirements for qualifying providers.  The amended rule becomes effective on April 30, 2018.  The Supreme Court opinion implementing the amended rule (and others) is here: http://www.floridasupremecourt.org/decisions/2018/sc16-1470.pdf

The BOG directed its Review Committee on Professional Ethics to consider a proposed advisory opinion after receiving an inquiry by a Florida Bar member.  The BOG committee will consider the opinion at a meeting scheduled for May 18, 2018, from 1-3 p.m. at the Westin hotel in Key West and the draft opinion will be Proposed Advisory Opinion 17-2.

There is currently no draft opinion; however, the proposed advisory opinion will address different types of fee arrangements between for-profit qualifying providers and lawyer referral services who are otherwise in compliance with Rules Regulating The Florida Bar and participating lawyers. The Florida Bar rules prohibit lawyers from sharing fees with private for-profit qualifying providers.

The draft advisory opinion may address various fee arrangements, including:

  1. set fees paid to the qualifying provider on a weekly, monthly, or annual basis;
  2. set fees paid to the qualifying provider for each case referred to the participating lawyer;
  3. set fees paid to the qualifying provider for each case referred to a participating lawyer depending upon the type of matter (e.g., personal injury, family law);
  4. set fees paid to the qualifying provider for each case accepted by the participating lawyer;
  5. set fees paid to the qualifying provider for each case accepted by the participating lawyer depending on the type of matter (e.g., personal injury, family law);
  6. fees paid to the qualifying provider based upon the perceived value of the case referred to the participating lawyer;
  7. set fees paid to the qualifying provider depending upon the perceived value of a type of matter referred to participating lawyers; and
  8. fees paid to the qualifying provider which are a percentage of the recovery or percentage of the fee charged by the participating lawyer.

Pursuant to Florida Bar Procedures, Florida Bar members may comment on the proposed opinion.  Any comments must contain Proposed Advisory Opinion number 17-2, must clearly state the issues for the committee to consider, may offer suggestions for additional fee arrangements to be addressed by the proposed advisory opinion, and may include a proposed conclusion. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the notice in the April 15, 2018 issue of The Florida Bar News.

Bottom line:  The amended rule substantially change the current rules related to lawyer referrals and the Board of Governors has now initiated the process of identifying various fee arrangements between lawyers and qualifying providers which may or may not comply with the new rules.  Any lawyers who participate in (or are considering participating in) referrals from a private entity should carefully review the new rules, since lawyers can be prosecuted if the referral service (qualifying provider) fails to comply with the amended Bar rule(s).

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 files Petition with Florida Supreme Court against TIKD alleging UPL; TIKD files Answer and Summary Judgment Motion

Hello everyone and welcome to this Ethics Alert which will discuss the Petition filed by The Florida Bar on January 23, 2018 alleging that the services provided by the TIKD app constitute the Unauthorized Practice of Law (UPL), TIKD’s April 4, 2018 Answer, and TIKD’s April 9, 2018 Motion for Summary Judgment.  The case is The Florida Bar v. TIKD Services LLC and Christopher Riley, Case No. SC18-149 (Supreme Court of Florida).  The Florida Bar’s Petition is here:  https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_petition_69080_petition2dupl.pdf, TIKD and Riley’s Answer and Response to Order to Show Cause is here: https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_response_50492_answer.pdf and the Motion for Summary Judgment is here:  https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_motion_116248_motion2dother20substantive.pdf

As I have previously blogged, the TIKD internet application permits a ticketed person to upload a photo of the ticket and pay a fixed amount.  TIKD then retains an attorney to represent that person and, if he or she is ultimately is assessed with points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.  The TIKD business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by an individual.

TIKD subsequently filed a lawsuit in the U.S. Federal Court, Southern District of Florida, alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  That case is ongoing.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be (or were) in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment.  TIKD stated that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”

On January 23, 2018, The Florida Bar filed a Petition Against the Unlicensed Practice of Law against TIKD and its founder, Christopher Riley.  The Petition alleges, inter alia, that TIKD and Riley “advertise in a fashion which may lead a reasonable lay person to believe Respondents are qualified to offer legal services to the public”, “either personally or through advertisement offer traffic ticket defense legal services for a fixed price along with an offer to pay all fines and court costs with a money-back guarantee” and, “either personally or through advertisement offer traffic ticket defense legal services while suggesting that their services are the equivalent of or a substitute for the services of an attorney.”

The Petition requested the Court to find that the alleged conduct constitutes the Unlicensed Practice of Law and issue a permanent injunction “preventing and restraining Respondents from engaging in the acts complained of and from otherwise engaging in the practice of law in the State of Florida, until such time as Respondent Riley is duly licensed to practice law in this state.”  TIKD has now filed an Answer and Response to the Order to Show Cause as well as a Motion for Summary Judgment stating that it is not engaging in the practice of law and is merely providing a valuable service to its customers.

Bottom line:  This TIKD UPL matter is now being litigated before both the Federal Court and the Supreme Court of Florida.  The internet application business model implicates the traditional and longstanding prohibitions against UPL and lawyers splitting fees with non-lawyers.

I will keep everyone advised…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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Florida Bar’s Board of Governors considers Bar Rule amendment prohibiting lawyers from using Google AdWords to misdirect results

Hello everyone and welcome to this Ethics Alert, which will discuss the recent proposed amendment to Florida Bar Rule 4-7.13 which would prohibit a Florida lawyer from using the name of another lawyer or law firm to trigger a search result that includes an Internet advertisement of the first lawyer.  The Florida Bar Board of Governors Agenda Item Summary of the proposed rule amendment is  here: file:///C:/Users/jcorsmeier/Downloads/Board_Agenda_Item_20c_Board_Numbering_March_2018.pdf

The Board Review Committee of the Bar’s Board of Governors (BOG) is considering the amendment to Bar Rule 4-7.13 which would prohibit the unauthorized use of a lawyer’s name in metadata or Google AdWords to drive search results to a different lawyer’s website.  The BOG previously rejected a Bar Standing Committee on Advertising (SAC) opinion that reached the same conclusion, voting 23-19 to withdraw the opinion on December 13, 2013.

According to the Bar summary, the BOG voted to withdraw the SCA opinion “because the purchase of ad words (such as Google ad words or other search engines such as Yahoo or Bing) is permissible as long as the resulting advertisements or sponsored links clearly are advertising based on their placement and wording, and because meta tags and hidden text are outdated forms of web optimization that are penalized by search engines and can be dealt with via existing rules prohibiting misleading forms of advertising.”

The proposed amendment to Rule 4-7.13 and proposed comment are below:

(c) Using Names of Other Lawyers or Law Firms in Internet Advertising. 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. This prohibition applies regardless of whether the lawyer directly uses the other’s name or does so indirectly, such as through participation in a group advertising program.

Comment

Use of Other Lawyers’ Names

The reputation of a lawyer or law firm is valuable and is personal to that lawyer or law firm. A lawyer’s name and reputation may be the lawyer’s greatest professional asset. Principles of professionalism, as well as the bar’s interest in protecting the public by preventing deceptive advertising, dictate that a lawyer’s name should not intentionally be used by another lawyer in an Internet advertising scheme or campaign. A lawyer’s intentional use of another’s name as keywords or search terms in order to attract prospective clients to the lawyer’s advertising is a misuse of the other’s name and reputation and is inherently misleading or deceptive.

Bottom line:  The proposed amendment will again be on the BOG agenda at its next meeting in May 2018.  If approved by the BOG and implemented by the Florida Supreme Court, this Bar rule amendment would prohibit a lawyer from purchasing internet search engine or other key words which misdirect (or redirect) users who search for one lawyer’s name to another lawyer’s website.

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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Texas Ethics Opinion 671 prohibits anonymous contact with unnamed internet defamer to obtain information for deposition

Hello everyone and welcome to this Ethics Alert, which will discuss recent Texas Ethics Opinion 671 which states that lawyers, and their agents, may not anonymously contact an unnamed online alleged defamer in order to obtain jurisdictional or identifying information sufficient for obtaining a deposition pursuant to Rule 202, Texas Rules of Civil Procedure.  The ethics opinion was issued in March 2018 and is here:  https://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-671 

The ethics opinion responds to an inquiry from a lawyer which asked the following question:  “Whether an attorney or attorney’s agent may anonymously contact an anonymous online defamer in order to obtain jurisdictional information sufficient for obtaining a Rule 202 deposition”

The opinion states that under Texas Rules of Civil Procedure 202, a party may petition the court for an order authorizing the taking of a deposition to obtain the testimony of any person for use in an anticipated lawsuit or to investigate a potential claim or lawsuit.  Lawyers had previously relied on Rule 202 to discover both jurisdictional and identifying information regarding otherwise anonymous individuals online.

In August 2014, the Texas Supreme Court issued an opinion holding that a Texas court could not order a pre-suit deposition to identify an anonymous online defamer unless the petitioner showed that the individual had sufficient contacts with Texas for personal jurisdiction.  That decision raised the issue of how a lawyer could establish jurisdictional facts about an anonymous individual such as a cyber-stalker or an online defamer.

The opinion discusses the rules related to the lawyer’s duty not to make material misrepresentations to third parties and/or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation as well as other state ethics opinions which address the use social media to obtain information, such as sending a “friend” request on Facebook.

The opinion extends the rationale in those state opinions and concludes that:

“(I)t is the opinion of this Committee that the failure by attorneys and those acting as their agents to reveal their identities when engaging in online investigations, even for the limited purpose of obtaining identifying or jurisdictional information, can constitute misrepresentation, dishonesty, deceit, or the omission of a material fact. Accordingly, lawyers may be subject to discipline under the Rules if they, or their agents, anonymously contact an anonymous online individual in order to obtain jurisdictional or identifying information sufficient for obtaining a Rule 202 deposition. In order to comply with the Rules, attorneys, and agents of attorneys, must identify themselves and their role in the matter in question.”

The opinion does not address or discuss the use of technology to attempt to determine the location and name of the individual without direct contact.

Bottom line:  As I have said (and blogged) in the past, the ethics opinions (and the Bar rules) prohibit using surreptitious means to contact an individual to conduct an investigation and attempt to gain information, such as sending an anonymous or disguised Facebook “friend” request.  This Texas ethics opinion extends this analogy and states that lawyers (and their agents) are prohibited from anonymously contacting an unnamed online individual  to obtain jurisdictional or identifying information sufficient for a deposition (and ultimately a 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.

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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Filed under Attorney Ethics, Ethics Opinion anonymous conduct over internet o obtain information, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misconduct improper Facebook access, Lawyer misconduct improper social media access, Texas Ethics Opinion anonymous contact with unnamed internet defamer

U.S. DOJ files Statement in TIKD in federal lawsuit arguing that Florida Bar is not immune from Sherman antitrust allegations

Hello everyone and welcome to this Ethics Alert Update which will discuss the recent (March 12, 2018) Statement of Interest filed by the United States Department of Justice arguing that The Florida Bar is not immune or exempt from antitrust under the Sherman Antitrust Act based upon the U.S. Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court, Southern District of Florida-Miami Division).  The Statement of Interest is available on the PACER federal document system here:  https://www.pacer.gov/login.html (subscription required).

As I previously blogged, TIKD Services, LLC filed the federal lawsuit against The Florida Bar, the Ticket Clinic law firm, and other individuals in the U.S. District Court, Southern District of Florida on November 8, 2017.  The TIKD app allows an individual who has received a traffic citation to upload a photo of the citation and pay a fixed fee and TIKD retains an attorney to represent that individual.  If the individual receives points against his or her license, TIKD refunds the payment and pays the cost of the ticket.  The business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by the individual.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of Florida Bar disciplinary rules, including fee splitting and interference with the lawyer’s independent professional judgment.  A complaint was filed with The Florida Bar by members of the law firm alleging that TIKD was engaging in the unauthorized practice of law (UPL).  That complaint is currently pending and the Bar has recommended further proceedings.

TIKD then filed the federal lawsuit court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  The defendants include The Florida Bar, attorney Mark S. Good, who founded The Ticket Clinic law firm, and other individuals.  According to the federal Complaint, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story and a few months later, attorneys with The Ticket Clinic threatened to report two of TIKD’s lawyers to The Florida Bar if they continued to work with TIKD.

A state lawsuit was filed and was settled; however, TIKD alleges in the federal Complaint that The Florida Bar and the Ticket Clinic law firm continued to make a “concerted effort” to put it out of business, and that the firm’s lawyers continued filing “baseless ethics complaints” against attorneys who represent TIKD customers.

A recent (February 21, 2018) Motion for Sanctions filed by the Ticket Clinic law firm alleged, inter alia, that The Florida Bar has immunity, which immunized the individual defendants, that the individuals have immunity on other grounds, that the lawsuit is frivolous on other grounds, and that the lawsuit should be dismissed and the Plaintiffs should be sanctioned.

On March 12, 2018, the U.S. Department of Justice filed a statement of interest stating that The Florida Bar is not immune from federal or state antitrust liability under the Sherman Act as an arm of the state based upon the U.S. Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  According to the statement:

“The Florida Bar defendants assert, as one ground for their motion to dismiss, that they are entitled to protection against Sherman Act claims by the state-action doctrine of Parker v. Brown, 317 U.S. 341 (1943), without having to satisfy either the “clear articulation” or “active supervision” requirements of that doctrine. That position is incorrect. The Supreme Court’s most recent state-action decision, N. Carolina State Bd. of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), clarified the state-action doctrine with respect to state agencies that regulate learned professions. It requires that the Bar, if “controlled by active market participants,” id. at 1114, must satisfy the clear articulation and active supervision requirements in order to obtain state-action protection.”

Bottom line:  As I have previously blogged, this is one of the first cases filed in Florida (and possible in any jurisdiction) which directly alleges that a State Bar’s procedures violate the Sherman Antitrust Act in reliance upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.  The Statement of Interest filed by the U.S. Department of Justice agrees with that analysis and argues that it is correct.  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.

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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Filed under Attorney Ethics, Bar antitrust, Bar regulation and antitrust, BAR UPL antitrust, Florida Bar, Florida Bar TIKD antitrust lawsuit, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer antitrust, Lawyer assisting unlicensed practice of law, Lawyer assisting unlicensed practice of law (UPL), Lawyer assisting UPL, Lawyer ethics, Lawyer Ethics and Professionalism, North Carolina Dental Board, North Carolina dental whitening case and UPL, TIKD UPL Bar request for Florida Supreme Court injunction, TIKD US DOJ Statement of Interest no Bar immunity, TIKD v Florida Bar Motion for Sanctions, TIKD v. Florida Bar antitrust federal lawsuit, U.S. Constitution and UPL regulation- professional speech and application of UPL rules, U.S. Supreme Court

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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