Tag Archives: Lawyer advertising rules

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sponsored links clearly are advertising based on their placement and wording, and because meta tags and hidden text are outdated forms of web optimization that are penalized by search engines and can be dealt with via existing rules prohibiting misleading forms of advertising.”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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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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The Florida Supreme Court rejects Bar proposed advertising Rule amendment on lawyers’ use of “expert” and “specialist”

Hello and welcome to this Ethics Alert update on the Bar’s proposed amendment to Florida Bar Rule 4-7.14 on lawyers’ of “specialization” and “expertise” in advertisements which was filed in response to the federal court opinion which found the rule unconstitutional.  The Bar filed an Omnibus Rules Petition with, inter alia, the proposed rule amendment with the Florida Supreme Court and the court issued an opinion on November 9, 2017 rejecting the proposed rule revisions.  The SC opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf#search=Bar

The proposed amendment would have prohibited a lawyer from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  If the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”  The court’s opinion states:

We decline to adopt the Bar’s proposal to amend Bar Rule 4-7.14 (Potentially Misleading Advertisements). The Bar proposes amendments to this rule in response to a decision from the United States District Court for the Northern District of Florida, which held, in relevant part, that provisions in Bar Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from making truthful statements that they “specialize in” or “have expertise in” a particular field of practice were unconstitutional.

In response to this decision, the Bar recommended amending the rule in subdivision (a) (Potentially Misleading Advertisements) to add a new subdivision (a)(5), which would prohibit lawyers from using in their advertisements the terms “specialist,” “expert,” or other variations of those terms unless the lawyer meets one of the four criteria established in subdivisions (a)(5)(A)-(a)(5)(D). The criteria in subdivisions (a)(5)(A), (a)(5)(B), and (a)(5)(C) are similar to those in other parts of rule 4-7.14. However, subdivision (a)(5)(D) would provide that a lawyer may identify as a “specialist” or “expert” if the lawyer’s “experience and training demonstrate specialized competence in an area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”; if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement must include a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by the Bar or another certification program.

We are concerned that the Bar’s proposal here does not sufficiently address the district court’s decision, and that the language requiring that a lawyer’s experience be “reasonably comparable” to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications. Because we believe that this important issue requires further study, we decline to adopt the Bar’s proposed amendments to rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.

Bottom line:  I previously said that the proposed Bar rule amendment was problematic and may not comply with the federal district judge’s opinion finding that the rule violates the U.S. Constitution.  The Florida Supreme Court has declined to implement the revised rule and the Bar will now go back to the drawing board.

Stay tuned…and be careful out there.

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.

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

Joseph A. Corsmeier, Esquire

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

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

 

 

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New York ethics opinion finds that fees paid to Avvo for legal services violate referral, fee splitting, and advertising Bar Rules

Hello everyone and welcome to this Ethics Alert which will discuss recent (August 8, 2017) New York Ethics Opinion 1132 which found that lawyers in New York are prohibited from participating in AVVO’s client referral services.  This opinion found that the referral services violate the Bar rules since they involve improper “vouching for” (and recommendation of) the lawyer, improper lawyer referral fees, and fee sharing with a non-lawyer.

The companion New York Ethics Opinion 1131 (August 8, 2017) sets forth the structures of various web-based services and attempts to explain how those services could comply with the New York Bar Rules.  Both New York State Bar Ethics Opinions are here: http://www.nysba.org/EthicsOpinion1132/ and here: http://www.nysba.org/EthicsOpinion1131/ .

NYSBA Ethics Opinion 1132 states that, since Avvo Legal Services provides ratings of lawyers using the service based on various qualifiers such as years in practice, information provided by the lawyers, volunteer bar work and other publicly available information, and offers to find a client “the right” lawyer with a money-back guarantee, there is an implied recommendation as to the lawyer’s “credentials, abilities, competence, character, or other professional qualities”; therefore, the marketing fee is “an improper payment for a recommendation in violation the New York  Bar Rules.

The opinion also states that since “the Avvo website also extols the benefits of being able to work with highly rated lawyers,” it creates a reasonable impression that it is recommending its top-rated lawyers. and the satisfaction guarantee “also contributes to this impression.”

“Avvo is giving potential clients the impression that a lawyer with a rating of ‘10’ is ‘superb,’ and is thus a better lawyer for the client’s matter than a lawyer with a lower rating. Avvo is also giving potential clients the impression that Avvo’s eligibility requirements for lawyers who participate in Avvo Legal Services assure that participating lawyers are ‘highly qualified.’” The opinion states that Avvo Legal Services’ “satisfaction guarantee” also contributes to the impression that Avvo is recommending its lawyers’ services “because it stands behind them to the extent of refunding payment if the client is not satisfied.”

According to the opinion, Comment 1 of New York Rule 7.2 prohibits a lead generator not only from stating that it is recommending a lawyer, but also from implying or creating a reasonable impression that it is making such a recommendation.

NYSBA Ethics Opinion 1132 concludes:

“This opinion does not preclude a lawyer from advertising bona fide professional ratings generated by third parties in advertisements, and we recognize that a lawyer may pay another party (such as a magazine or website) to include those bona fide ratings in the lawyer’s advertisements. But Avvo Legal Services is different.  It is not a third party, but rather the very party that will benefit financially if potential clients hire the lawyers rated by Avvo.  Avvo markets the lawyers participating in the service offered under the Avvo brand, generates Avvo ratings that it uses in the advertising for the lawyers who participate in Avvo Legal Services, and effectively ‘vouches for’ each participating lawyer’s credentials, abilities, and competence by offering a full refund if the client is not satisfied. As noted earlier, Avvo says: ‘We stand behind our services and expect our clients to be 100% satisfied with their experience’” Accordingly, we conclude that lawyers who pay Avvo’s marketing fee are paying for a recommendation, and are thus violating Rule 7.2(a).”

NYSBA Ethics Opinion 1131 sets forth the structures of various web-based services and attempts to explain how those services could potentially comply with the New York Bar Rules.  That opinion concludes:

“A lawyer may pay a for-profit service for leads to potential clients obtained via a website on which potential clients provide contact information and agree to be contacted by a participating lawyer, as long as (i) the lawyer who contacts the potential client has been selected by transparent and mechanical methods that do not purport to be based on an analysis of the potential client’s legal problem or the qualifications of the selected lawyer to handle that problem; (ii) the service does not explicitly or implicitly recommend any lawyer, and (iii) the website of the service complies with the requirements of Rule 7.1.  A lawyer who purchases such a lead to a potential client may ethically telephone that potential client if the potential client has invited the lawyer selected by the service to make contact by telephone.”

The opinions also briefly discuss the potential confidentiality issues related to AVVO’s “money back guarantee”.

Bottom line:  New York has now joined the list of jurisdictions finding that Avvo’s “marketing fee” taken from fees paid to lawyers using its client generation services violate ethics rules and are impermissible referral fees.  This New York ethics opinion (like all ethics opinions) is advisory only; however, it is the most recent finding that the fee charges in AVVO’s plan constitute improper referral fees and fee sharing.  Other jurisdictions (such as a pending North Carolina opinion) may also publish ethics opinions in the future.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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

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

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

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

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

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

Bottom line:  These revised Virginia Bar advertising rules substantially streamline and reduce the number of rules.  This appears to be a trend and we will see whether (or when) other jurisdictions follow.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising and solicitation APRL report, Lawyer Advertising opinion, Lawyer advertising rules, Lawyer ethics, Lawyer Ethics and Professionalism, Virginia revised and reduced advertising rules, Virginia streamlined advertising rules 2017

California Ethics Opinion addresses ethics issues related to lawyer blogging and advertising and provides guidelines

Hello everyone and welcome to this Ethics Alert which will discuss the recent California Formal Ethics Opinion which addresses ethics issues related to lawyer blogging and advertising and provides guidelines for lawyers who blog.  The Opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2016-196 and the ethics opinion is here: Cal. Formal Opinion No. 2016-196

The opinion reviews the application of advertising rules to attorney blogging and when blogging by an attorney considered a “communication” under the California Bar Rules and the provisions of California Business and Professions Code which regulate attorney advertising.  The California rules prohibit false or deceptive “communications” which confuse, deceive or mislead the public (as do most, if not all Bar rules throughout the U.S.)  This proscription applies to both affirmative statements and/or to omissions necessary to make a statement not misleading.

The opinion discusses U.S. Constitution First Amendment principles, including the fact that lawyer advertising is protected commercial speech, and truthful lawyer advertising cannot be absolutely prohibited; however, it can be subject to reasonable regulation and restrictions.  In addition, communications for publication by lawyers that are primarily informational and educational have long been considered to be core political speech and protected under the First Amendment, and such speech can be restricted only under extraordinary circumstances.

The First Amendment protections apply even if the lawyer also hopes, as a partial motive, to use the informational and educational communications to increase his or her legal business; however, commercial motivation is only one factor to be considered.  The key questions are whether a blog is a message or offer (1) made by or on behalf of a California attorney; (2) concerns the attorney’s availability for professional employment; and; (3) is directed to a former, present or prospective client.  Since all blogs will meet factors 1 and 3, the important question is whether the blog concerns the attorney’s availability for professional employment under question 2.

The opinion discusses Cal. Formal Opinion 2012-186, which analyzes the application of California advertising rules to attorney social media posts, and found that a post which has words of offer or invitation relating to representation is a “communication’; however, if a post is only informational in nature, it is not a communication. The opinion concluded that this same analysis applies to lawyer blogs.

The opinion also discusses Cal. Formal Opinion 2001-155, which found that, even without specific words of invitation or offer, a website that included information such as a detailed listing of services, qualifications, backgrounds, and other attributes of the attorney or law firm, with their distribution to the public, could carry a “clear implication” of availability for employment, and would therefore be a “communication” subject to advertising  regulation. The opinion concluded that the same analysis applies to lawyer blogs.

The opinion states that a listing of all of an attorney’s cases and outcomes, without comment, could be considered informational and not a “communication”; however, a communication with the result of a specific case or cases without providing information related to the facts and/or law giving rise to the result, would be presumed to be false, misleading or deceptive, and could be a prohibited “guarantee, warranty or prediction regarding the result of representation.” The opinion stated that even a numbered listing of “wins” might be misleading without clarification about what is considered a “win.”  The use of disclaimers may (but will not necessarily) overcome a presumption of violation.

Bottom line:  Lawyer blogging has become a very popular and somewhat ubiquitous form of legal communication and is often recommended to lawyers as a business strategy.  This recent California Bar ethics opinion provides solid guidance to lawyers who are blogging or plan to blog to attempt to insure compliance with the Bar rules, regardless of whether the lawyer is in California or another state.  If a lawyer blogs, each blog should primarily informational and educational to potentially avoid the application of Bar advertising rules (like this one).

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.

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

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Florida Bar Board of Governors agrees with BOG Ethics and Bar Advertising Committees that “Results So Good, You’ll Think It’s Magic!” violates Bar Rules

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

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

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

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

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

Happy New Year to you and yours and be careful out there!

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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