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.
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