1/31/13 Florida Supreme Court opinion adopts and implements all of The Florida Bar’s proposed comprehensive advertising rules with one minor exception

Hello everyone and welcome to this Breaking News Ethics Alert blog to advise that the Supreme Court of Florida issued a split opinion today (January 31, 2013) adopting all of The Florida Bar’s proposed comprehensive revisions to the Bar advertising rules with a minor exception and a complete renumbering of the rules.  Justices Polston, Lewis, LaBarga, and Perry concurred in the opinion, Justice Quince concurred in part and dissented in part, and Justices Pariente and Canady dissented and issued separate opinions.  The Court’s opinion is In Re: Amendments to the Rules Regulating The Florida Bar-Subchapter 4-7, Lawyer Advertising Rules, No. SC11-1327.  The opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf.  The comprehensive advertising rule amendments will become effective on May 1, 2013, at 12:01 a.m.

The only change that the opinion made to the comprehensive rules proposed by the Bar (beyond the renumbering) is as follows: “proposed new rule 4-7.13(b)(10) regarding the use of a judicial, executive, or legislative branch title by a current, former, or retired judicial, executive, or legislative branch official who is currently engaged in the practice of law.  We have determined that the use of such a title is not inherently misleading if it is accompanied by clear modifiers and the title is placed subsequent to the person’s name.  For example, a former judge may not state “Judge Doe (retired)” or “Judge Doe, former circuit judge.”  However, she may state “Jane Doe, Florida Bar member, former circuit judge” or “Jane Doe, retired circuit judge.”  We have modified the proposal and the accompanying comment accordingly.”

Bottom line:  As I have discussed in previous Ethics Alerts, the revisions are comprehensive and will result in a sea change with regard to lawyer advertising regulation in Florida.  I plan to send additional Ethics Alerts addressing each rule revision.

…and be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

The Florida Bar’s Standing Advertising Committee decides multiple appeals from Bar staff opinions interpreting lawyer advertising rules

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent decisions of the Bar’s Standing Advertising Committee on appeals from staff opinions on lawyer advertising.  According to the Bar’s website, the Standing Committee is “charged with the responsibility of advising members of The Florida Bar on permissible advertising and solicitation practices. This responsibility is accomplished through the issuance of written advisory opinions, the evaluation of advertisements required to be filed with the committee, and the development of a handbook on advertising for the guidance of and dissemination to members of The Florida Bar.  In addition, the committee is empowered to recommend to the board of governors such amendments to the Rules of Professional Conduct as the committee believes are appropriate.”  Although not binding, the committee’s decisions are used by The Florida Bar in examining advertising issues and prosecuting Bar advertising Rule violations.

With regard to lawyer referral services, the committee decided that a lawyer referral service fee arrangement with participating lawyers, in which the lawyers pay the service a set amount for each case the lawyer accepts from the referral service and bills the fee back to the client, is a division or sharing of fees with a non-lawyer in violation of Bar Rules Rule 4-7.10(a)(2) and 4-5.4(a).  Rule 4-7.10(a)(2) provides that a lawyer may not accept referrals from a lawyer referral service unless the service receives no fee or charge that constitutes a division or sharing of fees.

With regard to characterization of the quality of legal services, the committee decided that the italicized language describes or characterizes the quality of the services being offered and therefore is prohibited by Rule 4-7.2(c)(2):  “(Lawyer) holds an AV® Preeminent rating from the Martindale Hubbell Peer Review, which is the highest level attainable by an attorney and represents the highest level of skill and integrity.  The committee determined that the language would comply if it was revised to use the verbatim statement Martindale Hubbell uses to describe its rating, and clearly indicate that the statement is attributable to Martindale Hubbell, such as “according to Martindale-Hubbell, the rating is. . . .”

The committee also voted to reverse a staff opinion on a newspaper advertisement and decided that the use of “top-tier” in the description of the U.S. News-Best Lawyers ranking does not characterize the quality of the services being offered because the firm is listed in U.S. News-Best Lawyers in Tier 1 but that use of the word “excellence” does characterize the quality of legal services in violation of Rule 4-7.2(c)(2).  The description was as follows:  “So when they asked for top-tier legal services, we responded – which is why in the latest U.S. News-Best Lawyers ® “Best Law Firms” rankings, the Orlando office was recognized for excellence in Administrative/Regulatory Law, Corporate Law, Environmental Law, General Commercial Litigation, Government Relations Practice, Land Use & Zoning Law, Real Estate Law, and Tax Law.”

With regard to promising results, the committee decided that the statement “Justice. Compensation. Case Closed.” appearing in an advertisement for personal injury matters promises results in violation of Rule 4-7.2(c)(1)(G), which prohibits any statement in lawyer advertising that promises results the lawyer can achieve.  The committee also decided that the language, “Ten thousand dollars, one hundred thousand dollars, a million dollars” also promises results in violation of Rule 4-7.2(c)(1)(G) and is misleading in violation of Rule 4-7.2(c)(1).

The committee decided that the following italicized language does not violate Rule 4-7.2(c)(1)(G) because it does not promise results:  “Now it’s time for you to take the next step and help secure your legacy and family’s future.  Through the Biz-Growth Program you can hire (law firm) on commission to assist you in obtaining contracts for your organization.

With regard to misleading statements, the committee decided that it is misleading for an owner of a lawyer referral service, who is a former professional football player, to use the title “Coach” in his advertisements because the title is misleading in violation of Rule 4-7.2(c)(1) because he is not currently a coach.  Rule 4-7.2(c)(1)(A) provides that “A lawyer shall not make or permit to be made a false, misleading, deceptive communication about the lawyer or the lawyer’s services. A communication violates this rule if it: (A) contains a material misrepresentation of fact or law”.

With regard to use of celebrities, the committee reversed the Bar staff and determined that the name and image of the owner of the lawyer referral service, who is a former professional football player, may be included in a television advertisement for the referral service.  Under Rule 4-7.5(b)(1)(B), lawyers are prohibited from using a spokesperson with a “voice or image that is recognizable to the public.”

With regard to the advertisement filing requirement, the committee decided that an unsolicited letter that offers a free safety magazine to recipients who call or e-mail the law firm is an attorney advertisement that must be filed pursuant to Rule 4-7.7 and must comply with the direct mail requirements of Rule 4-7.4(b).

Bottom line:  If you advertise (or are interested in advertising), these decisions affect what may be placed in the advertisement.

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Indiana Bar Ethics Opinion warns that lawyer participation in group coupon programs as a marketing tool may be unethical

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent Indiana State Bar Association Ethics Opinion which states that a lawyers’ use of group coupon or daily deal programs to obtain new clients is “fraught with peril” and most likely violates Indiana Bar Rules.  The opinion is Indiana State Bar Association Legal Ethics Comm., Op. 1, 2012-JDH-1.  A copy of the opinion is attached.

The opinion addresses lawyers’ participation in the escalating industry of marketing through group coupon or daily deal arrangements (such as Groupon) and notes that in these arrangements the group coupon company and the participating business establish a discounted price for the item or service to be sold and then share that price.  The company charges the customers for the coupon only after a certain number of people respond to the offer and also, some customers who purchase coupons do not redeem them within the time period stated in the offer.

Indiana Bar Rule 2.1 requires a lawyer to exercise independent professional judgment in representing a client and the opinion notes that this standard is difficult (if not impossible) to meet if the representation of a client is determined by the potential client’s decision to purchase a coupon without any consultation.

The opinion also notes that Indiana’s guidelines on use of non-lawyer assistants provide that the creation of an attorney-client relationship is the nontransferable duty of the lawyer and a lawyer may not delegate to a non-lawyer assistant the responsibility for establishing an attorney-client relationship, which would occur of the company offers the coupons.

Indiana Bar Rule 5.4 also prohibits fee-sharing with non-lawyers in most circumstances, and Comment (4) to Indiana Bar Rule 7.2 states that lawyers are not permitted to pay others “for channeling professional work” (i.e. referrals).  By creating buying groups, the companies offering group coupon arrangements “are being paid to channel buyers of legal work to the specific lawyer, in violation of the advertising and fee-sharing rules.”

In addition, under Indiana Bar Rule 1.7, a lawyer is required to insure there are no conflicts of interest or any conflicts are resolved before undertaking the representation and, if any conflicts are not resolved before the representation begins, the lawyer is required to terminate the representation and return any fees paid.

According to the opinion, the coupon users might qualify as prospective clients under Indiana Bar Rule 1.18 if they deposit money with a group coupon company for the purpose of forming an attorney-client relationship and, if that occurred, lawyers would be required to meet the rule’s obligations regarding confidentiality and avoiding conflicts of interest.

The opinion found it “troubling” that group coupon companies hold funds paid by clients until the funds are disbursed to the lawyer and that some companies pay out the funds over time in incremental amounts.  This arrangement would violate Indiana Bar Rule 1.15(c), which requires that advance fees must be held in trust and withdrawn only when earned.  In addition, the client’s funds are most likely not segregated and complete trust records are not maintained as required by Indiana Bar Rule 1.15(a). The provision in some of the group coupon contracts that the funds remain the property of the company also violates Indiana Bar Rule 1.15.

The opinion also expressed concern that if consumers who purchase coupons are not ultimately represented by the lawyer, the participating lawyer would not be able to comply with Indiana Bar Rule 1.16(a), which requires a lawyer to refund any advance fees which have not been earned.  In addition,  the lawyer would not be able to timely identify each individual who bought a coupon but did not become clients and refund the entire amount paid to the client, including the company’s share, which is required by the Indiana Bar Rules.

Although Indiana Bar Rule 7.2(b)(1) allows a lawyer to pay the reasonable costs of advertisements, the group coupons used by some companies violate that rule since the company keeps as much as 50% of the amount collected, instead of allocating an amount related to the reasonable costs of the advertising.

The opinion suggests that online coupon advertising arrangements may be permissible under certain limited circumstances, for example, if the lawyer offers a coupon for legal services at a specified rate, with the client to pay the lawyer directly.  If the client paid a nominal fee for this coupon related to the reasonable costs of the marketing, this arrangement would not violate the Indiana Bar Rules.

According to the opinion, a few states have examined this issue and “(t)he reports are that they have considered different aspects of the program as important and have disagreed as to the propriety of such programs.”  The opinion refers to ethics opinions from Missouri, New York, North Carolina, and South Carolina.

The opinion concluded that “it is likely not appropriate for a lawyer licensed in Indiana to advertise through a group coupon program” similar to those discussed in the opinion and lawyers considering such an arrangement should do “rigorous research before entering into such an arrangement” and may even want to hire private counsel to “guide the lawyer through the dangers inherent in such marketing, including discussion of alternative courses of action that may comply with the rules.”

Bottom line: The Florida Bar’s Professional Ethics Committee has not issued an ethics opinion on this issue; however, this Indiana ethics opinion makes it very clear that, at least in Indiana, lawyers must be aware that unless the group coupon program avoids the minefields set out in the opinion, a lawyer who participates would potentially violate the Indiana Bar Rules and be subject to disciplinary consequences.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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.

Former Maricopa County Arizona Attorney and deputy are disbarred for “dishonesty” and “abuse of power”

Hello and welcome to this JACPA Ethics Alert blog which will discuss the April 10, 2012 opinion of an the Arizona Supreme disciplinary panel (which was made up of individuals appointed by the Colorado Supreme Court Office of Attorney Regulation) disbarring a controversial Maricopa County Attorney and one of his deputies and suspending another deputy for numerous allegations of misconduct.

The very long and somewhat dense and flowery opinion of the disciplinary panel found that the lawyers had misused their prosecutorial power for political and other purposes.  The panel found by clear and convincing evidence that former Maricopa County Attorney Andrew Thomas and two of his deputies abused their authority as prosecutors by filing criminal charges against two county supervisors, a judge, and others for political reasons and, instead of pursuing the interests of justice, they often used the power unethically to hurt their political enemies, acted with dishonesty, and failed to cooperate with an Arizona State Bar investigation.  The County Attorney and one of his deputies were disbarred and another was suspended effective May 10, 2012.

You can read the opinion at your leisure; however, the following is an interesting quote:

“Sadly, their own individual basic mistrust of others, when combined together, became multiplied by dishonesty, an abuse of power and a remarkable willingness to spend the public’s money for their cause célèbre. The aggravating factors devastate the mitigating factors. We find they knew they had no evidence and prosecuted people anyway. There was no “noble cause.” There was only self–interest. The harm done to the public, individuals, and the profession was stunning on every front.”

Bottom line:  Although this Arizona Bar prosecution has not received much local media attention, the sheer volume of allegations of corruption, lust for and abuse of political power, and political intrigue would make a good novel or television show…however, it appears that it is all true.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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.

 

 

The Florida Bar’s Special Committee on Lawyer Referral Services reviews restrictions on for-profit lawyer referral entities

Hello and welcome to this JACPA Ethics Alert blog which discusses the recent article in The Florida Bar News which reviewed the March 9, 2012 meeting of The Florida Bar’s Special Committee on Lawyer Referral Services wherein the committee reviewed and discussed various options to impose restrictions on lawyers’ affiliation with for-profit referral services.

According to the article, the committee discussed several issues and matters, including a letter from outside Bar counsel Barry Richard addressing the constitutional implications of restrictions on referral services with which lawyers may be affiliated.

The committee is considering a prohibition on lawyers taking cases referred from an entity that also makes referrals for other professional services and members expressed concerns about potential conflicts when lawyers accept referrals from services that also refer callers for medical care.  Members noted that when lawyers represent clients in personal injury cases, they typically try to negotiate lower medical bills; however, if a lawyer accepts referrals from a service which makes such multiple referrals, he or she would be negotiating with the entity (or a related entity) which referred them the case.

According to the article, the committee is considering how to structure restrictions on lawyer referral services to limit issues related to restraint of trade, free speech, and other constitutional issues.  Representatives from two medical/legal referral services, ASK-GARY and 911 PAIN, attended the meeting and told committee members that there is no quid pro quo requirement that lawyer members of the referral services send clients to the medical clinics associated with their services.
The committee also discussed other proposals, including the requirement of a disclaimer by the referral service or the lawyer to all referral callers and potential clients and possible changes to the client’s bill of rights which is required to be provided to clients under the Bar Rules.  The committee also discussed the potential of enhanced oversight by the Bar of referral activities and an administrative fee to be paid by lawyers who join referral services to pay for the costs of the Bar’s oversight.
The committee also reviewed the following recommendations and options made at an earlier meeting:

1.         Requiring that a referral be made to a specific lawyer (and not to a law firm) and requiring the lawyer to become responsible for insuring that the referral complies with all Bar rules and requirements.

2.         Requiring that lawyers who join referral services register with The Florida Bar.  The current structure relies upon referral services to provide lists of their members, which has apparently been problematic.

3.         Requiring that the initial contact with the lawyer be made by the client and not by the referral service, medical clinic, or other third party.  This was in response to testimony by individuals who sought treatment from a medical clinic that they were told they first had to hire a lawyer and that clinic personnel or other non-lawyers had guided the completion of the fee retainers.

4.         Improving public education about for-profit referral services and related issues.

Bottom line: As I have said before, it appears that restrictions on lawyer participation in for-profit lawyer referral services will be coming and the only questions are how the restrictions will be structured and how long it will be until those restrictions are in implemented.  Stay tuned…

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Florida Bar finds no probable cause to proceed on trust account allegations against KEL law firm partners related to money scam

Hello and welcome to this JACPA Ethics Alert blog which will discuss the recent media reports that The Florida Bar no probable cause to proceed against partners in Orlando’s KEL law firm related to Bar rule violations related to an international money scam in which the law firm was defrauded of more than $285,000.00.

The Florida Bar began its investigation after several Bar complaints were filed alleging that the KEL law firm’s three principal partners mismanaged trust account funds when the firm unwittingly became involved in the money scam.  In late February 2012, a Bar grievance committee found that the lawyers in KEL did not violate any Bar disciplinary rules when the law firm was scammed into depositing a fraudulent bank check in the amount of $285,000.00 into its trust account and wiring the funds to a Japanese bank account before the funds had cleared the bank.

As I have stated on numerous occasions and in previous trust account seminars, Florida Bar trust account rules require lawyers to wait for trust funds to clear all banks before the funds are disbursed; however, there are exceptions and the Bar’s Notice of No Probable Cause found that the lawyers had “reasonable and prudent grounds to believe” the check was legitimate (under Florida Bar Rule 5-1.1(j)(3)), which is one of these exceptions.

According to the media reports, the Notice also stated that KEL fully cooperated with a federal investigation of the incident, that the funds have since been “retrieved.”  Federal authorities had previously filed a forfeiture suit seeking to recover the money from JPMorgan Chase, an affiliate of Japan’s Shinsei Bank, where the money was deposited.

Bottom line:  This is a very real example of the substantial risks to lawyers related to these types of international/internet money scams and should be a stark lesson to all lawyers.  Please don’t be fooled and don’t let this happen to you…

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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.

Recent federal Second Circuit Opinion strikes part of New York Bar rule requiring certified lawyers to make disclosures as unconstitutional

Hello welcome to this JACPA Ethics Alert blog which will discuss the recent federal Second Circuit Court of Appeals opinion which found that parts of a New York Bar rule requiring lawyers who claim to be certified specialists to make certain disclosure statements were violations of the free speech provisions of the First Amendment of the U.S. Constitution. The opinion is: Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District, 10-1587-cv (March 5, 2012) and the opinion is attached.

New York Bar Rule 7.4 permitted a lawyer who is certified as a specialist to state that claim in an advertisement if the certifying organization is identified and the following statements are “prominently made” in the advertisement: “(1) The (name of the private certifying organization) is not affiliated with any governmental authority (,) (2) Certification is not a requirement for the practice of law in the State of New York and, (3) (that the certification) does not necessarily indicate greater competence than other attorneys experience in this field of law.”

The New York Bar committee opened an investigation in 1996 regarding the lawyer’s reference to himself as a “board certified civil trial specialist.”  The lawyer subsequently agreed to include the name of the board that certified him (National Board of Trial Advocacy) on both his letterhead and in future telephone directory advertisements and was not disciplined.

In 1999, the lawyer placed advertisements on two billboards which had the disclaimer; however, the Bar committee sent him correspondence questioning whether the disclaimer on the bulletin board was large enough to meet the “prominently made” requirement of NY Rule 7.4.  That investigation was ultimately closed and the lawyer was not disciplined; however, in May 2000, the Bar committee began another investigation into the lack of disclaimer on the lawyer’s letterhead.  The lawyer argued that he did not need the disclaimer on the letterhead because the letterhead only said that he was board certified and did not state he was a “specialist.”  The Bar committee’s position was that the use of the word “certified” implied specialization.

The lawyer filed a lawsuit in federal court in 2001 seeking a declaration that the predecessor to Rule 7.4, DR 2-105 (C)(1) was not enforceable.  The District Judge granted summary judgment finding that New York had a substantial interest in protecting the public from potentially misleading attorney advertisements which was furthered by the rule and the rule was narrowly drawn and citing the U.S. Supreme Court decisions in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) and Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990) and.  The judge also rejected the claim that the rule was vague on its face but found there were still issues on whether it was vague as applied.  A bench trial was then held, the federal Magistrate also rejected the lawyer’s claims, and the lawyer appealed to the federal Second Circuit Court of Appeals.

The Second Circuit opinion reversed the federal Western District Judge’s grant of summary judgment to the grievance committee and the decision of a federal Magistrate who rejected the lawyer’s void-for-vagueness claim after a 2010 trial.

The opinion first states that there is “no constitutional infirmity” in the first required disclosure that attorneys who claim to be specialists disclose that the certifying organization is not affiliated with any governmental authority.

With regard to the second required disclosure that certification not a requirement for the practice of law, the NY Bar committee argued that the in the State of New York was necessary since, without the disclosure, the public would believe that a lawyer is required to be certified to practice law “thereby leading them to think that they must limit their choice to state-licensed lawyers to those who have been certified as specialists.”  The opinion states that this “possible belief” is “sufficiently strained to require some basis in the record to support it” and there was none in the appellate record.

The opinion found that the third required disclosure that certification “‘does not necessarily indicate greater competence than other attorneys experienced in the field of law’-is even more problematic.”  Further, some members of the public “might easily think that a certified attorney has no greater qualifications than other attorneys with some (unspecified) degree of experience in the designated area of practice,” when, in fact, the National Board of Trial Advocacy only certifies lawyers who have been lead counsel in at least five trials, who have been an active participant in at least 100 contested matters involving the taking of testimony, who have passed an exam and had 45 hours of continuing legal education and who devote at least 30 percent of their practice to the specialized field.

“These qualifications may reasonably be considered by the certifying body to provide some assurance of ‘competence’ greater than that of lawyers meeting only the criterion of having some experience in the field, and a contrary assertion has a clear potential to mislead,” he said. “Such a requirement does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.”  Based on this rationale, the opinion found this disclosure requirement to be unconstitutional.

Although he was not disciplined for violation of the NY Bar Rule, the lawyer also argued that his disclaimer on the first billboard was “prominently made” because the lettering was six inches high, one inch higher that the health warnings on cigarette billboards.  The opinion found that “(a)lthough (the lawyer) was never in fact disciplined for violation of the rule, the mere existence of repeated and extended investigations of his conduct created a cloud on his good standing as a member of the bar that was a meaningful adverse consequence to him, and that would clearly chill legitimate advertising by similarly situated lawyers, based on a rule whose contours that a lawyer of ordinary skill and intelligence could not reasonably discern.”  The opinion found that it could not conclude that a lawyer of “average intelligence” could anticipate that six-inch high disclaimers were not “prominently made” and therefore this requirement was unconstitutionally vague as applied to the lawyer.

Bottom line:  This federal appellate court opinion addresses only New York Bar Rules; however, it is interesting that the opinion strikes down as unconstitutional mandatory disclosure rules related to lawyer certification and addresses the extent to which the Bar can require lawyer speech (i.e. mandatory disclosures), instead of the extent how far lawyer speech can be restricted.  It will be interesting to see how this plays out in Florida and other states which have Bar rules requiring mandatory disclosures.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me. THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A. PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES (AND MUCH MORE!) My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues. Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it. Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. 2454 McMullen Booth Road, Suite 431 Clearwater, Florida 33759 Office (727) 799-1688 Fax     (727) 799-1670 jcorsmeier@jac-law.com www.jac-law.com 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.

Recent NY Ethics Opinion concludes that if one joint client revokes consent a lawyer is not always required to drop the other client(s)

Hello welcome to this JACPA Ethics Alert blog which will discuss the recent New York opinion which concludes that when one joint client revokes consent to conflict, the representation of other joint client(s) does not always have to be terminated.  The opinion is: New York State Bar Ass’n Comm. on Professional Ethics, Op. 903, January 30, 2012) and the opinion is attached.

According to the hypothetical in the opinion, the lawyer was asked to represent two defendants in the same lawsuit and each client gave informed consent in writing for the lawyer to represent them and agreed to waive any future conflict.  Two years later, one client claimed that its interests differed significantly from those of the other client and revoked the consent to the simultaneous representation. The lawyer asked for an opinion as to whether he could continue representing the other client without the revoking client’s consent.

The opinion initially states that when undertaking a joint representation, a lawyer should obtain an advance agreement with the clients regarding what will happen if one of them revokes their waiver and consent.  This advance agreement would not guarantee that the lawyer could continue to represent the remaining client but would assist in the analysis; however, even if there is such an agreement, the propriety of the lawyer’s continued representation of the other client would depend on the particular circumstances, although withdrawal may be the most likely outcome.

The opinion notes that “an advance agreement can avoid many uncertainties surrounding a client’s revocation of consent to a multiple representation” and could specify whether a lawyer may continue to represent either client after consent is revoked, and whether the lawyer may use or reveal confidential information obtained from a client who has revoked the consent during the representation.

Since the joint clients’ waiver and consent in this hypothetical did not have an agreement regarding the effect of a withdrawal of consent, the opinion reviewed and analyzed the New York Rules of Professional Conduct and identified a variety of factors and rules which should be reviewed and analyzed.  The rules which the committee analyzed are as follows:

New York Bar Rule 1.7(a)(1) prohibits a lawyer from representing a client if a reasonable lawyer would conclude that the representation “will involve the lawyer in representing differing interests”, unless the clients give informed consent, confirmed in writing, and the other conditions in NY Rule 1.7(b) (similar to Florida Bar Rule 4-1.7(b)) are met.

            Florida Bar Rule 4-1.7(a) has different language and states that “a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

The opinion refers to certain comments to NY Rule 1.7 regarding conflicts which arise during joint representation which state that if the lawyer has not obtained the client’s informed consent under paragraph (b), he or she must ordinarily withdraw.  The comment also states that whether the lawyer can continue to represent any of the clients depends on the lawyer’s ability to comply with duties owed to the former client and to adequately represent the remaining client(s) given the duties to the former client.

Another comment to NY Rule 1.7 states that when unforeseeable developments create a conflict during a representation, the lawyer may have the option, depending on the circumstances, to withdraw from representing one of the clients, but the lawyer must protect the confidences of the client who has become a former client under NY Rule 1.9(c) (former client confidences rule similar to Florida Bar Rule 4-1.9(c), and must seek court approval where necessary and minimize harm to the clients as required by NY Rule 1.16 (withdrawal from representation rule similar to Florida Bar Rule 4-1.16).

The comment to the NY Rule also states that whether a client’s revocation of consent to a conflict precludes the lawyer from representing other clients depends on the circumstances, including: 1) the nature of the conflict; 2) whether the client revoked consent because of a material change in circumstances; 3) the reasonable expectations of the other client; and 4) whether material detriment to the other client or the lawyer would result.  The opinion states that the issue of whether the lawyer can continue to represent the other client when one client revokes consent depends upon the four factors set forth in the comment.  The comment also states that: “(o)rdinarily, absent the informed consent of all clients, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.  See (NY) Rule 1.9(a).”

NY Rule 1.9(a) (similar to Florida Bar Rule 4-1.9(a)) prohibits a lawyer from representing a client in a matter if the client’s interests are materially adverse to those of a former client in the same matter, unless the former client gives informed consent, confirmed in writing. Ordinarily, the committee explained, this rule will require a lawyer to drop both joint clients when a conflict between them arises, because the lawyer will be forbidden to oppose either client in the same matter.

The opinion also refers to the commentary to Section 122 of the Restatement (Third) of the Law Governing Lawyers (2000), which states that revocation of consent does not necessarily prevent the lawyer from continuing to represent the other joint client and whether the lawyer can continue the representation depends on whether the client was justified in revoking the consent and whether material detriment to the other client would result.

The opinion concludes that the facts provided by the lawyer were not sufficient to evaluate all of those factors; however, the opinion provides the following advice:  “(w)hen a lawyer jointly represents two co-defendants pursuant to a validly obtained consent to the dual representation and to any future conflicts that might arise between the joint clients, and one of the clients later revokes consent, whether the lawyer may continue to represent the non-revoking client depends upon the circumstances, unless an advance agreement specifies what happens upon revocation of consent.”

Bottom line:  As I have said many times in the past, conflicts of interest, informed consent, and waivers related to multiple clients can be complicated and require careful analysis of all of the relevant facts before the lawyer should even consider representing multiple clients.  This NY opinion states that a lawyer is not always required to terminate the representation of a client when the other client revokes a waiver; however, it would prudent to do so on most occasions to avoid future issues, ethical or otherwise.  In addition, it may be helpful to ask the multiple clients to agree that the lawyer will be permitted to continue the representation if one client revokes the waiver; however, if the conflict is not waivable or if the revoking client is disgruntled, it may be more trouble than it is worth to stay in the representation.

As a reminder, Bar Ethics Opinions (particularly out of state opinions) are not binding; however, they can be very useful for guidance and mitigation, if the opinion is followed in good faith and issues later arise.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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.

 

 

 

 

 

Guidelines for Lawyer Networking Sites were revised and posted on The Florida Bar’s website on January 10, 2012

Hello welcome to this edition of the JACPA Ethics Alert blog which will discuss the revisions to the Guidelines for Networking Sites which were posted on The Florida Bar’s website www.floridabar.org on January 10, 2012.

The Guidelines for Networking Sites were initially approved by the Florida Bar’s Standing Committee on Advertising after the Supreme Court of Florida implemented revisions to Rule 4-7.6 in 2009 (that revised rule was later stayed and then withdrawn by the Court).  The revised guidelines state verbatim as follows (with the most relevant sections in bold):

1.         “Pages of individual lawyers on social networking sites that are used solely for social purposes to maintain social contact with family and close friends are not subject to the lawyer advertising rules.

2.         “Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. These pages must therefore comply with all of the general regulations set forth in Rule 4-7.2.  Regulations include prohibitions against any misleading information, which includes references to past results, promises of results, and testimonials.  Regulations also include prohibitions against statements characterizing the quality of legal services. Lawyers and law firms should review Rule 4-7.2 in its entirety to comply with its requirements.  Additional information is available in the Handbook on Lawyer Advertising and Solicitation on the Florida Bar website.

3.         “Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer.  Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, or persons who have requested information from the lawyer.  Direct e-mail must comply with the general advertising regulations set forth in Rule 4-7.2 as well as additional requirements set forth in Rule 4-7.6(c).  Information on complying with the direct e-mail rules is available in the Handbook on Lawyer Advertising and Solicitation and in the Direct E-Mail Quick Reference Checklist on the Florida Bar website.

“Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.  If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.  If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information.  In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.

“Lawyers who post information to Twitter whose postings are generally accessible are subject to the lawyer advertising regulations set forth in Rule 4-7.2 as above.  A lawyer may post information via Twitter and may restrict access to the posts to the lawyer’s followers, who are persons who have specifically signed up to receive posts from that lawyer.  If access to a lawyer’s Twitter postings is restricted to the followers of the particular lawyer, the information posted there is information at the request of a prospective client and is not subject to the lawyer advertising rules under Rule 4-7.1(h).  The information remains subject to the general misconduct rule, which prohibits any conduct involving fraud, deceit, dishonesty or misrepresentation under Rules 4-7.1(i) and 4-8.4(c).  Any communications that a lawyer makes on an unsolicited basis to prospective clients to obtain “followers” is subject to the lawyer advertising rules, as with any other social media as noted above.

“(a) page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.

“In contrast with a lawyer’s page on a networking site, a banner advertisement posted by a lawyer on a social networking site is subject not only to the requirements of Rule 4-7.2, but also must be filed for review unless the content of the advertisement is limited to the safe harbor information listed in Rule 4-7.2(b)(1). See Rules 4-7.6(d), 4-7.7(a)(2) and 4-7.8(a).”

The only Florida Bar Rule that currently refers to the internet is Rule 4-7.6, which states that lawyer websites are “information upon request” and not subject to regulation under the advertising rules (except for disclosure, general misconduct, and misleading or false content) or the filing requirements.

In my opinion, it is not clear that, inter alia, “invitations (sent by the lawyer) directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis, unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer” are solicitations in violation of Rule 4-7.4(a).  It is also not clear under the current rules that lawyers “who post information to Twitter and whose postings are generally accessible would be subject to the lawyer advertising regulations set forth in Rule 4-7.2.”

Bottom line:  These guidelines have no binding effect; however, it is important for lawyers to be aware of them since they can and will be used in reviewing potential or alleged advertising issues and rule violations related to electronic media.  As I have previously stated, the Supreme Court of Florida is considering the comprehensive revisions to the Bar Advertising Rules which were filed by the Bar in July 2011; however, none of the current rules even refer to networking/social media sites (and the current rules were implemented before these sites were even in existence and/or used by lawyers).

I am sure that there will be much more to come on these advertising issues.  I will reserve for now any comments on whether the enforcement of certain of these guidelines (and any future Bar rules) may constitute an infringement on lawyer’s right to free speech under the U.S. Constitution.  Stay tuned…

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me. THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A. PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES (AND MUCH MORE!) My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues. Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it. Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. 2454 McMullen Booth Road, Suite 431 Clearwater, Florida 33759 Office (727) 799-1688 Fax     (727) 799-1670 jcorsmeier@jac-law.com www.jac-law.com 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.