Federal District Judge enjoins The Florida Bar from enforcing rule prohibiting truthful claims of expertise

 

 

Hello and welcome to this Ethics Alert which will discuss the September 30, 2015 order and injunction issued by a U.S. Northern District of Florida Judge finding The Florida Bar’s rule prohibiting truthful claims of expertise without certification unconstitutional and enjoining their enforcement.  The injunction order is in the federal case of Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida).  The order is attached and is in Pacer here:  https://ecf.flnd.uscourts.gov/doc1/04914695967

As reported in my December 23, 2013 Ethics Alert blog, the Florida law firm of Searcy Denney Scarola Barnhart & Shipley, P.A. filed a federal lawsuit against The Florida Bar in December 2013 after the Bar found that language on the law firm’s website was in violation of Bar Rule 3-7.14, which prohibits claims of expertise unless a lawyer is Florida Bar Board certified in that area of practice, whether truthful or not.  That blog is here: https://jcorsmeier.wordpress.com/2013/12/23/florida-law-firm-files-federal-suit-challenging-constitutionality-of-the-florida-bars-2013-advertising-rules-including-linkedin-and-objectively-verifiable-requirements/

The Florida Bar Rule states as follows, in relevant part:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

• Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4)  a statement that a lawyer is board certified, 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; or

(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.

In the absence of such certification, a lawyer may communicate the fact that the lawyer limits his or her practice to 1 or more fields of law…

The injunction order found that the rule was unconstitutional as applied and prohibited the Bar from enforcing it against lawyers who make truthful statements regarding their expertise.  The order states as follows:

“The bar prohibits every lawyer in the state from claiming expertise in mass tort or unsafe product cases because there is no board certification in these narrow fields. And the bar prohibits every law firm in the state from claiming expertise in personal injury cases, because law firms, as distinguished from individual lawyers, cannot be board-certified.” “The state cannot prevent a person from advertising a lawful specialty, even if the state’s own definition of the specialty is different.”

The law firm also had the following statements on its website: “The days when we could trust big corporations…are over”; “government regulation of corporate America’s disregard of consumer safety has been lackadaisical at best”; and “when it comes to ‘tort reform,’ there is a single winner: the insurance industry.”

The Florida Bar found that these statements were not “objectively verifiable” and were therefore prohibited.  The order stated that the Bar’s position on political statements was “obviously unconstitutional”; however, since the Bar withdrew from its initial position and the law firm failed to appeal the standing committee’s decision to the Board of Governors, the issue was not ripe for consideration.  “Until the Board of Governors interprets the rule in an unconstitutional manner, the challenge is premature”.

Bottom line: If this order and injunction is upheld (or the Bar decides not to challenge it), it will result in a very significant change in the landscape of lawyer expertise and specialization advertising in Florida and in other states which have similar rules.  If upheld, lawyers will be permitted to advertise that they are “specialists” in areas of practice in which they are not certified by The Florida Bar, as long as the statements are “truthful”.  In addition, if the Bar does not change its position that “political statements” such as those on the website are not prohibited, this will also be a significant change in the interpretation of the Bar advertising rules.  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.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]

www.jac-law.com