Hello and welcome to this Ethics Alert blog which will discuss the upcoming Florida Bar Board of Governors meeting this week in Palm Beach wherein the BOG is scheduled to vote on final action regarding a proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise.
The proposed amendment was drafted in response to a Southern District of Florida federal district court judge’s September 30, 2015 Order/injunction which found that the Bar’s prohibition of non-certified lawyers from stating they have expertise or specialize in an area of law unless they were Board certified was unconstitutional as applied and enjoined its enforcement.
The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcement of the rule. The federal 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 federal injunction order is in the federal court’s Pacer system here: https://ecf.flnd.uscourts.gov/doc1/04914695967
The BOG will consider final action on the proposed rule amendment at its meeting on May 20, 2016. The proposed amendment is below (with the new substantive language in italics):
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:
(4) a statement that a lawyer is board certified or other variations of those terms unless:
(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.
Bottom line: If the BOG approves the proposed Rule amendment, it remains to be seen whether it will be applied in compliance with the federal court’s order and the U.S. Constitution. If the amendment is approved and the Bar rationally interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it will most likely be found to be constitutional if it is challenged. Another potential challenge would be on the ground that the rule is unconstitutionally vague and ambiguous on its face. 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
The Florida Bar Board of Governor’s revision to Rule 4-7.14 is obviously “fancy footwork” to circumvent the federal court’s 9/30/15 ruling. No lawyer who wants to advertise that he is a “specialist” or “expert” in his given area of the law will want to follow up that pronouncement with “a reasonably prominent disclaimer that the lawyer is not board certified.” As the BOG intended, the disclaimer acts to negate the original message. Worse still, the advertising lawyer would run the risk that prospective new clients would be driven away to search for a “Board Certified lawyer.” I do not think that Searcy, Denney, Scarola & Shipley will consider this the end of the debate. So long as lawyers steadfastly adhere to advertising that is not inherently misleading, the federal courts will continue to impose the protection of the First Amendment.