Hello and welcome to this Ethics Alert blog which will discuss the recent Florida Bar Board of Governors meeting wherein the BOG discussed rule changes to comply with a Florida federal district court judge’s Order finding that Bar rule which prevented non-certified lawyers from stating they have expertise or specialize in an area of law were unconstitutional and enjoining their enforcement. The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcing the rule. The case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida). The injunction order is attached and is in the federal court’s Pacer system here: https://ecf.flnd.uscourts.gov/doc1/04914695967
According to a March 1, 2016 Florida Bar News article, the chair of the Board Review Committee on Professional Ethics told the BOG at the meeting that the committee is considering several potential amendments; however, it has not agreed on a single version of the amendment. The committee chair said that the committee expected to make a recommendation at the board’s March 10, 2016 meeting; however, it is not clear whether the topic was discussed at that meeting. The Florida Bar News article is here: https://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/Articles/A1C3E4D1089C7B3785257F61004E782D
The BOG review was started after a September 30, 2015 Order by U.S. Northern District of Florida Judge Robert L. Hinkle in a lawsuit filed against The Florida Bar by the Searcy, Denney, Scarola, Barnhart & Shipley, P.A. law firm. The lawsuit challenged Bar rules which permit only Florida Bar (or the equivalent) certified lawyers to hold themselves out as “experts” or “specialists” in their advertisements. The Order stated non-certified lawyers and law firms could have expertise in an area even if they were not certified and that the regulation prevented lawyers from claiming expertise in areas for which there is no available Bar certification and enjoined the Bar from enforcing the rule as applied.
According to an article in the October 15, 2015, Florida Bar News, “As a result of Hinkle’s ruling, the Bar’s Ethics and Advertising Department, which reviews lawyer ads, has announced it will no longer find noncompliance for claims of specialization or expertise from non-certified lawyers. ‘Instead, the Bar will point out to the filer that the advertisement makes claims of specialization or expertise, and the filer may use them only if the filer can objectively verify those claims’, Bar Ethics Counsel Elizabeth Tarbert said in a letter to Bar officials.”
The BOG also approved the Board Review Committee on Professional Ethics’ recommendation to allow lawyers to communicate directly with potential clients using facsimiles, telegrams, and in online chatrooms as long as the lawyers follow the Florida Bar rules related to direct mail communications/solicitations. According to Bar Ethics and Advertising Counsel Elizabeth Tarbert, any solicitation made by the lawyer, including within a chatroom, must be preapproved by the Bar and must also comply with any applicable state and federal laws on solicitations using those methods of transmission.
The direct communications must be characterized as “advertisements” and tell the recipient to disregard them if they already have an attorney in the matter. The amendments were revised for uniformity after the BOG recently decided that direct text communications were permissible under Bar rules. The rule amendments will now be sent to the Florida Supreme Court for review and potential approval.
Bottom line: The BOG will hopefully approve a Bar Rule amendment which will provide constitutionally compliant guidance to lawyers regarding when they can state that they are “experts” or “specialists”, even if they are not certified by The Florida Bar (or the equivalent). It is most likely that the rule will have minimum requirements such as the number of years of practice and experience, among other potential criteria. 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.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
