Tag Archives: lawyer advertising

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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California interim ethics opinion addresses when lawyer blogging is subject to regulation under Bar Rules

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

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

The interim opinion’s digest section states:

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

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

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

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

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

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

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

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

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

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

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

Be careful out there.

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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

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

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

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

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

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

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

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

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

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

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

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

Stay tuned…and be careful out there.

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

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway N., Suite 150

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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N.J. Supreme Court reverses reprimand and dismisses complaint against lawyer who posted allegedly confidential information on his website

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New Jersey Supreme Court opinion reversing a Disciplinary Review Board’s reprimand recommendation and dismissing a complaint against lawyer who was alleged to have posted client confidential information on his website.  The disciplinary case is In the Matter of Jay J. Chatarpaul, Docket No. 15-134 (July 15, 2016).  The opinion is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1073877 and the Review Board’s Decision is here: http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1068061

According to the Decision, the disciplinary complaint originated from a discrimination lawsuit filed by the lawyer against Rite Aid on behalf of his client Rameena Khan, which was ultimately settled. The settlement agreement stated:

Plaintiff’s Attorney agrees that as of the execution of this Agreement, it [sic] has removed: (a) any and all articles, blogs, or other writings that have been authored, posted, publicized or controlled by it [sic], which disparage or discuss the Lawsuit, Complaint, Federal Action, Amended Complaint, the Trial or the Appeal in any manner whatsoever, from the Internet and elsewhere, including but not limited to the articles attached hereto as Exhibit A; and (b) all hyperlinks and references to said articles from the Internet. In addition, [respondent] agrees not to write any further articles or blogs, or make any nonprivileged statements, regarding or referencing the Lawsuit, the Complaint, the Amended Complaint, the Federal Action, the Trial or the Appeal.

The lawyer had previously published an article on his website discussing, inter alia, the facts of the case and alleged errors made by the Superior Court Judge who presided over the case:

At trial, the case was assigned to Judge Christine Farrington. Judge Farrington was recently appointed as a judge of the Superior Court and took the bench in June 2010. Prior to being appointed judge, Judge Farrington spent 10 years as deputy counsel for the Port Authority of New York and New Jersey and worked in claims administration, risk management and environmental matters.  During the trial, Judge Farrington made various prejudicial comments suggesting lack of impartiality, improperly excluding [sic] evidence and testimonies, etc., which are the subject of a pending appeal. Judge Farrington excluded various documents and testimonies, including documents and witnesses relating to the unemployment appeals hearing, documents and witnesses relating to Ms. Lazzaro [sic] termination and replacement, and other matters that are the subject of an appeal. The plaintiff’s position is that the jury’s verdict in favor of Rite Aid was the product of many errors of the trial judge, including various comments suggesting favoritism towards the position of Rite Aid. The plaintiff is confident that the appellate courts would [sic] grant a new trial based on these perceived errors.

The lawyer testified that although “in retrospect, he should not have made such statements about the judge and her rulings, respondent did not believe they were unethical. Still, he would not publish such an article again because he did not want to be the subject of another ethics investigation.”

The New Jersey Office of Attorney Ethics advised the lawyer to remove the article from his website because it allegedly contained client confidential information.  The lawyer removed the article from his website; however, it was still visible through a Google search.  The lawyer also argued that the information was public record and prohibiting him from publishing it would violate the First Amendment.

According to the Decision, “In respondent’s view, after the hyperlink had been removed from the law firm’s website, the article remained within the internet archives, but he did not know how to ‘get rid of that.'”  The Special Master found that the lawyer’s representations that he had removed the article constituted “gross negligence” since the article was still accessible on the internet, that the article violated the New Jersey lawyer advertising rules, and that the failure to remove the article was prejudicial to the administration of justice since the lawyer “failed to take reasonable and necessary steps to make sure the Kahn [sic] Article was completely removed from the Internet (especially after Respondent received the OAE’s April 8, 2013 letter), and that his failure to do so has unnecessarily consumed resources of the State.”

In the New Jersey Disciplinary Review Board Decision, four members recommended a reprimand, one member voted for an admonition, and another member voted to dismiss the disciplinary matter.  The majority found that the article violated client confidentiality and that the lawyer failed to preserve his website pages for 3 years under N.J. Bar Rule 7.2(b) (b) (A copy or recording of an advertisement or communication shall be kept for three years after its last dissemination along with a record of when and where it was used.”  The Decision acknowledged that there was no precedent for applying the requirement to website pages.

The New Jersey Supreme rejected the Disciplinary Review Board’s reprimand recommendation and dismissed the complaint.  The opinion found that “the respondent’s conduct in revealing information that was a matter of public record under the circumstances here did not violate (the client confidentiality rule)” and “there is a lack of precedent for applying RPC 7.2(b) to impose discipline on an attorney for failure to retain webpages of the attorney’s or a law firm’s website.”  The opinion also recommended that the New Jersey advisory committee on professional ethics consider amending the rules to require lawyers to retain their webpages for a minimum period of time.

Bottom line:  The factual and procedural circumstances underlying this opinion are convoluted; however, the lawyer argued that the article that he posted on his website contained public record and prohibiting him from publishing the information would be a violation First Amendment of the U.S. Constitution.  The opinion found that revealing information that is a matter of public record does not violate the New Jersey client confidentiality rules.

Be careful out there.

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

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

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’s Board of Governors will vote on substantial revisions to Bar rules related to lawyer referral services

Hello everyone and welcome to this Ethics Alert blog which will discuss the proposed revisions to the lawyer referral Bar rules which would change the names to “matching services” and “qualifying providers” and substantially revise the existing referral rules.  The proposed rule revisions are here:  http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/D8FFF4171E28E5C085257FA300648D6B/$FILE/4-7.22%20et%20al%20legislative.pdf?OpenElement

The proposed rules address for-profit companies that link lawyers with consumers needing legal work and are designed to prevent fee splitting between those companies and lawyers and protect the public from deceptive, misleading, or false advertising by those companies.  Under the proposed amendments, any private entities that connect consumers looking for legal services with lawyers are called “qualifying providers” regardless of whether they are a “traditional” referral service (ASK-GARY, 411 PAIN) or a technology-based provider (AVVO, LegalZoom).

The Florida Bar’s Board of Governors (BOG) received an updated report on May 20, 2016 from Carl Schwait, chair of the Board Review Committee on Professional Ethics.  That BOG committee was working on the rules with the BOG’s Technology Committee, chaired by board member John Stewart, since last year when the Florida Supreme Court rejected the Bar’s proposed rule amendments on for profit lawyer referral services.

The BOG is scheduled to vote on the proposed amendments at its July 29, 2016 meeting.  If approved, the amendments must be filed with the Supreme Court by August 15, 2016 and the Court must also approve and issue an Order implementing them.

The Florida Bar’s website has a page summarizing the proposed revisions to the rules and also has a frequently asked questions section and comparison chart.  The link to the page is here:  http://www.floridabar.org/proposedlrsamend#Overview and the summary of the proposed rule changes is below:

OVERALL CHANGES TO RULE

Terminology

“Qualifying Provider” instead of “lawyer referral service”

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Broader definition of “qualifying provider” including:

Directories

On-line matching services

Group or pooled advertising programs

Tips or leads programs

REQUIREMENTS RETAINED

Ads for qualifying providers must comply with lawyer advertising rules

Lawyers may not divide fees with qualifying providers (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must match consumers only to those authorized to provide the services in Florida

Qualifying providers must respond to official bar inquiries within 15 days

Qualifying providers may not state or imply bar endorsement (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must use their actual names or a registered fictitious name

DELETED REQUIREMENTS

Malpractice insurance

Lawyer referral services and other qualifying providers find it difficult if not impossible to obtain malpractice insurance that covers lawyers who are in different firms

Most lawyers are not required by bar rules to carry malpractice insurance (currently only lawyers participating in either for-profit or Florida Bar or voluntary bar lawyer referral services or Florida bar-approved group or pre-paid legal insurance plans are required to carry malpractice insurance)

Disclaimer in all ads that it is a lawyer referral service

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Requiring the disclaimer creates problems in states where lawyer referral services are prohibited

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Disclaimer in all ads that lawyers pay to participate

It is obvious to most consumers that they are for-profit

Some qualifying providers do not charge lawyers to participate, but make money by selling advertising space or by charging consumers to participate

Requirement that all services provide The Florida Bar quarterly with names of all those authorized to act on behalf of the service

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

CHANGED REQUIREMENT

Report to the bar of the names of all participating lawyers changed from quarterly to annual

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

NEW REQUIREMENTS

Qualifying providers:

may not require or pressure the lawyer to provide cross referrals

must give participating lawyers documentation of compliance with bar rules

must disclose participating lawyers’ location by city, town or county when the referral is made

may not use a name or otherwise imply to the public that the qualifying provider is a law firm, can practice law or directly provide legal services

REQUIREMENTS CONSIDERED BUT NOT RECOMMENDED 

Florida Supreme Court requested amendment that requires that lawyer referral services be owned or operated by a Florida Bar member

The BRC and Technology Committees discussed extensively and voted not to include the proposal

The Court already has regulatory authority over participating lawyers

Lawyers will become scapegoats for unscrupulous services

Services who are in compliance should not be penalized

Rules should be no more restrictive than is necessary to protect the public and ensure lawyer’s adherence to professional requirements

Defining ownership and operation is difficult and no parameters have been provided by the Court

FILING

Amendments will be considered for final action by The Florida Bar Board of Governors at its July 29, 2016 meeting in Miami Beach Comments may be sent to eto@floridabar.org – if filed with the bar by June 30, they will be provided to the board for its meeting

Petition to amend the rule will be filed with the Florida Supreme Court August 15, 2016

Comments may be filed directly with the Florida Supreme Court between August 15, 2016 and September 15, 2016

Bottom line:  If these rules are approved by the BOG (and the Florida Supreme Court), they will substantially change the landscape for lawyer referrals and the requirements for providers and lawyers to participate in “matching services”; however, although the Florida Supreme Court strongly suggested that only lawyers own the services, the rules do not limit ownership nor do they limit the referrals only to lawyers.

Be careful out there!

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

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

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

 

Leave a comment

Filed under Attorney Ethics, Florida Bar, Florida Bar 2016 Lawyer referral rule revisions, Florida Bar lawyer referral rule revisions, Florida Bar matching services, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Referral Services

Florida Bar Board of Governors votes to prohibit actors from reading client testimonials in lawyer advertisements

Hello everyone and welcome to this Ethics Alert blog which will discuss the May 2016 decision of the Florida Bar’s Board of Governors (BOG) to prohibit client testimonials read by actors in lawyer advertisements.

According to an article in the June 15, 2016 Florida Bar News, the BOG debated whether accept or reject a Bar Advertising opinion stating that lawyers are prohibited from using actors to read (and dramatize) client testimonials.  The 2013 revisions to the Florida Bar advertising rules permit the use of client testimonials if certain requirements are met, including that the lawyer not write the testimonial or pay the client for it.  The current advertising rules also permit lawyers to use an actor in a lawyer advertisement if it has the required disclaimer(s).

The BOG reviewed two proposed television advertisements submitted by a law firm.  The first advertisement had the following language in testimonial form: “When I was injured in my car accident, my first thought was: How will I be able to take care of my family? That’s why I called the law offices of . . . . They made sure I could continue to take care of my family with $650,000 in insurance compensation for my car accident injuries.”  The second advertisement had this testimonial language: “I love sports . . . baseball, soccer, all kinds of sports, but after my car accident, I wasn’t sure if I would be able to enjoy playing sports again. I called the law offices of . . . and they helped get me back in the game with a $100,000 insurance settlement.”  Both were to be read by actors.

According to the Bar News article, the chair of the BOG Review Committee on Professional Ethics stated that the BOG committee voted 7-2 to recommend the advertisements violated Florida Bar Rule 4-7.13, which prohibits deceptive and misleading advertisements.   The BOG Review Committee agreed with the Bar advertising staff opinion and the Standing Committee on Advertising which had found that having an actor read a client testimonial would violate the Bar advertising rules.

On a voice vote, the BOG approved the BOG Review Committee on Professional Ethics’ recommendation to reject the proposed advertisements because they violate Florida Bar Rule 4-7.13 prohibiting deceptive and misleading advertisements.

Bottom line:  Lawyers who advertise must be aware that the 2013 revisions to the Florida Bar’s Advertising Rules have somewhat dramatically altered the landscape of advertising in Florida.  The rules now specifically permit both testimonials (with certain requirements) and actors in advertisements (with disclaimers); however, in this decision, the BOG made it clear that actors cannot read such testimonials in lawyer advertisements in Florida.

Be careful out there!

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

Please note:  Effective June 27, 2016, my new office address will be: 29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761.  E-mail addresses and telephone numbers below will remain the same.  I may also have limited telephone service on Thursday, June 23 and Friday, June 24; however, my e-mail service should still be available 

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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