Top 10 Reasons Lawyers Receive Bar 2/7/2014
Transcription
Top 10 Reasons Lawyers Receive Bar 2/7/2014
2/7/2014 Top 10 Reasons Lawyers Receive Bar Complaints and How to Avoid Them Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. 2454 N. McMullen Booth Road, Suite 431 Clearwater, Florida 33759 Office: (727) 799-1688 [email protected] The List Procrastination/Neglect/Lack of Communication Trust Account/Handling Client Funds Fee Agreements/Fees Client Confidentiality/Privilege Withdrawal and Non-engagement/Disengagement Duties Owed to Opposing Counsel/Third Parties Duties Related to False Statements/Evidence Duties Toward Non-Lawyers/Subordinate Lawyer Duties Conflicts of Interest Advertising/Solicitation- Digital/Traditional 1 2/7/2014 Diligence RULE 4-1.3 DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. Comment A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See rule 4-1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. A lawyer's workload must be controlled so that each matter can be handled competently. Communication RULE 4-1.4 COMMUNICATION (a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment Reasonable communication between the lawyer and the client is necessary for the client to effectively participate in the representation. 2 2/7/2014 Sanctions for Lack of Diligence/Communication The Florida Bar v. Whitney, No. SC11-1135 (12/5/13) The lawyer accepted a substantial fee from his client but did not perform “notable” work. He also misused his client’s funds by twice traveling to Brazil, once for no apparent caserelated reason and once as unnecessary to obtaining the information sought. While the immigration issue may have been complicated, “(the lawyer) did not communicate that issue to (his client). The lawyer also committed misconduct in a malpractice action filed against him and testified falsely, “failed to produce documents, did not appear for his first noticed deposition, and offered frivolous responses to the interrogatories. (The lawyer) has not paid the portion of the judgment awarding attorney’s fees and costs in the malpractice action, and continues to refer to his conduct as negligent. The opinion found that the referee’s recommended sanction of a 90 day suspension was unsupported and imposed a one-year suspension. IOTA Trust Accounts Bar trust account rules require client and certain third party funds to be held in trust. Funds that belong to the client or to another person are required to be held separate from the lawyer’s own funds under the Bar rules and the lawyer is a fiduciary for the funds while they are held in trust on behalf of the client or third person. Interest (if any) from IOTA trust fund interest is “swept” into the Bar Foundation’s bank account and used for client security fund and other purposes. Rule 5-1.1(j) states that trust funds cannot be disbursed until they are actually “collected”. Cashier’s and certified checks, bank or other financial institution checks, lawyer or real estate broker’s trust account checks, government checks, and insurance company checks are considered to be collected upon receipt. But don’t depend on this rule…only disburse when check fully clears. 3 2/7/2014 IOTA Trust Accounts Commingling of trust funds with the attorney’s own funds in the trust account for an unreasonable time is prohibited under the Bar rules. What is commingling? Rule 5-1.1 (a) Nature of Money or Property Entrusted to Attorney. (1) Trust Account Required; Commingling Prohibited. A lawyer shall hold in trust, separate from the lawyer’s own property, funds and property of clients or third persons that are in a lawyer’s possession in connection with a representation. All funds, including advances for fees, costs, and expenses, shall be kept in a separate bank or savings and loan association account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person and clearly labeled and designated as a trust account. A lawyer may maintain his or her funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to pay bank charges relating to the trust account. IOTA Trust Accounts 5-1.1 (e) Notice of Receipt of Trust Funds; Delivery; Accounting. Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. 5-1.1(f) Disputed Ownership of Trust Funds. When in the course of representation a lawyer is in possession of property in which 2 or more persons (1 of whom may be the lawyer) claim interests, the property shall be treated by the lawyer as trust property, but the portion belonging to the lawyer or law firm shall be withdrawn within a reasonable time after it becomes due unless the right of the lawyer or law firm to receive it is disputed, in which event the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. Comment “(W)here appropriate, the lawyer should consider the possibility of depositing the property or funds in dispute into the registry of the applicable court so that the matter may be adjudicated.” 4 2/7/2014 IOTA Trust Accounts Rule 5-1.2 was recently amended to permit lawyers to keep trust account records “in their original format or stored in digital media as long as the copies include all data contained in the original documents and may be produced when required.” Lawyers may also keep “clearly legible” copies of deposit slips instead of the originals if the copies include all data on the originals and clearly legible copies of original canceled checks, instead of originals, “if the copies include all endorsements and all other data and tracking information.” IOTA Trust Accounts Tips for IOTA Trust Account Management The trust account and trust checks must be labeled “IOTA Trust Account”. The bank authorization to notify The Florida Bar if there is an insufficient or uncollected funds check should be in writing. Trust account checks should indicate that they are void after 90 days. The procedure for reporting and disposing of unclaimed trust account funds is set forth in Chapter 717, Florida Statutes and should be followed. Only attorneys should be authorized to sign IOTA trust account checks and make withdrawals from the account. Protect your on-line access username and password Disputes regarding disbursement of trust funds received by the attorney must be resolved pursuant to the Bar rules, including Rule 5-1.1(e) and (f) as discussed above and potential interpleader and trust funds deposited into court registry. If you have trust funds and cannot find your client Unclaimed or unidentified client funds/property should be sent to the State of Florida per F.S. 717 Contact Department of Financial Services, http://www.fltreasurehunt.org, Unclaimed Property Office 1888-258-2253 E-mail: [email protected] 5 2/7/2014 IOTA Trust Account Sanctions The Florida Bar v. Rousso and Roth, No. SC11-16 (3/18/13). Lawyers discovered that there was shortage of thousands of dollars in trust account and claimed that non-lawyer bookkeeper had embezzled the funds. Referee found that "100's of millions of dollars passed through" the law firm trust account and that the trust account "imbalance" was "roughly $4.38 million"; however, there was no evidence of any misappropriation and recommended 15 month suspension for Roth and12 month suspension for Rousso. Court found that lawyers engaged in trust account misconduct and misconduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 4-8.4(c) by taking money from clients and depositing it into trust account and continuing to represent those clients without disclosing to the clients that the trust account was seriously underfunded. "The Court does not view violations of rule 4-8.4(c) as minor. The Court has clearly stated that 'basic, fundamental dishonesty...is a serious flaw, which cannot be tolerated. (cite omitted)' After considering case law and the egregious misconduct present in this case, we conclude that disbarments are the appropriate sanctions." Fees and Fee Agreements Should have written fee agreement or engagement letter for every client/matter (or master fee agreement/engagement letter) Written fee agreement required if contingent fee and confirmed in writing if fee is nonrefundable Specifically identify the client(s) and set forth and limit the parameters/scope of representation Confirm responsibility for costs/expenses and frequency of billing Provide for right to withdraw (see Bar Rule 4-1.16) Identify mandatory and permissive withdrawal- may withdraw due to client’s failure to meet financial obligations Have procedures in place to follow up if fee agreement not timely executed If third payer, should sign as well Bar Rule 4-1.5(i) requires mandatory arbitration provision to be in writing and disclosure must be in specific language of the Bar rule Suing the client not prohibited; however, be ready for the malpractice counterclaim 6 2/7/2014 Fees and Fee Agreements Florida Bar Ethics Op. 93-2 Nonrefundable fees permissible but are subject to clearly excessive fee analysis. Fees earned upon receipt (nonrefundable) must be deposited in operating and not trust account. Attorney must perform “substantial work” of fee may be excessive. If part of payment is earned fee and part future costs/expenses, the lawyer must deposit the check into trust account, must withdraw amount of flat/earned fee and leave remainder in trust account Rule 4-1.5(e) was recently amended: “A fee for legal services that is nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount. The test of reasonableness found in subdivision (b), above, applies to all fees for legal services without regard to their characterization by the parties.” SC rejected Bar's proposal to add definitions of retainer, flat fee, and advanced fee to Comment stating that any revisions should be studied and potentially added to rule language not to the Comment. Attorney/Client Confidentiality Confidentiality applies not only to information received from the client but all information related to the representation, regardless of whether the information came from the client or another source. Rule 4-1.6 Confidentiality of Information (a) prohibits a lawyer from revealing information “relating to representation of a client” except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent. (b) requires disclosure of confidential information to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another. This mandatory disclosure is different from the crime-fraud exception to privilege since the threat of substantial injury or death is necessary to require that the information be revealed. 7 2/7/2014 Attorney/Client Confidentiality Rule 4-1.6 Confidentiality of Information (c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to serve the client's interest unless it is information the client specifically requires not to be disclosed; (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client; (3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; (4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (5) to comply with the Rules of Professional Conduct. Attorney/Client Confidentiality Rule 4-1.6 Confidentiality of Information (d) Exhaustion of Appellate Remedies. When required by a tribunal to reveal such information, a lawyer may first exhaust all appellate remedies. (e) Limitation on Amount of Disclosure. When disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purposes of this rule. Applies to responses to Bar complaints. Absent an exception, confidential information remains confidential during the representation and after the client dies. The lawyer should not reveal confidential information if it will injure the client’s interests (absent an exception or legal compulsion), and it should only be disclosed to advance those interests. 8 2/7/2014 Attorney/Client Confidentiality The Florida Bar v. Knowles, 99 So. 3d 91 (Fla. 2012) “Respondent filed two motions on separate occasions in which she disparaged her client’s character in a reprehensible fashion. Respondent attacked her client’s integrity with regard to her alleged failure to honor checks and fulfill contracts. Respondent further stated that she had heard reports that her client had robbed members of the Romanian community. Finally, and most egregiously, Respondent brazenly asserted that her client had been rightfully convicted for grand theft, and that Respondent actually regretted having helped her client. Such disparaging language is needless and has no place in a public court pleading, especially when the statements are made by an attorney and are directed at the attorney’s own client. Unbridled language of this sort harms the client and causes the public to lose faith in the legal profession. Respondent’s conduct was highly prejudicial to the administration of justice and cannot be tolerated.” Lawyer violated, inter alia, 4-1.6 (confidentiality) and 4-8.4(d) (conduct prejudicial to admin of justice). Court increased discipline from 90 day non-rehab suspension to 1 year rehab suspension Attorney/Client Confidentiality Perils of Representing Multiple Clients Florida Bar Ethics Opinion 95-4- Confidentiality in Joint Representations In a joint representation between husband and wife in estate planning, an attorney is not required to discuss issues regarding confidentiality at the outset of representation. The attorney may not reveal confidential information to the wife when the husband tells the attorney that he wishes to provide for a beneficiary (his mistress), who is unknown to the wife. The attorney must withdraw from the representation of both husband and wife because of the conflict presented when the attorney must maintain the husband's separate confidences regarding the joint representation. 9 2/7/2014 Attorney/Client Confidentiality Ethics Opinion 10-3 Confidentiality in Estate Planning A lawyer’s ethical obligations regarding a request for confidential information of a deceased client by the personal representative, beneficiaries or heirs-at-law of a decedent’s estate, or their counsel, will vary depending on the circumstances. A lawyer may disclose confidential information to serve the deceased client’s interests, unless the deceased client previously instructed the lawyer not to disclose the information. Whether and what information may be disclosed will depend on who is making the request, the information sought, and other factors. Doubt should be resolved in favor of nondisclosure. When compelled to disclose information via subpoena, a lawyer must disclose all information sought that is not privileged, and raise privilege as to any information for which there is a good faith basis to do so. Attorney/Client Confidentiality The Florida Bar v. Lange, 711 So. 2d 518 (Fla. 1988). The Florida Supreme Court found that an attorney violated the confidentiality disciplinary rule by disclosing a client’s confession to other crimes publicly to the trial court. In the Bar discipline proceedings, the attorney claimed that the disclosure of the confidential information fell within the “crime-fraud” exception to the attorney/client privilege. The Court rejected that defense and found that the attorney’s actions constituted a disclosure of confidential information in violation of Rule 4-1.6. Although the Lange opinion analyzed the disclosure of what it referred to as privileged information, the same information was also confidential under the Bar discipline rules. Regardless of whether the information is statutorily privileged, the disclosure of confidential information (absent an exception) may nevertheless be a violation of the Bar rules. 10 2/7/2014 Attorney/Client Confidentiality Patrowicz v. Wolff, --- So.3d ----, 2013 WL 1352488 (Fla. 2d DCA April 05, 2013) Florida Second District Court of Appeal granted a petition for writ of certiorari and quashed a discovery order compelling the production of allegedly privileged documents without first conducting an in camera inspection to determine whether the privilege applies. "(T)he reason we must quash the order is that the trial court ordered production of the documents without first reviewing them and determining whether the attorney-client privilege applied. Not only did (the lawyer) specify that his objection was based on the attorney-client privilege, but the subpoena on its face explicitly requested communications between an attorney and his client. Consequently, the trial court was required to conduct an in camera inspection of the documents prior to ordering their disclosure. We therefore quash the order compelling the production of the documents and remand the case for further proceedings." Attorney/Client Confidentiality Rule 4-3.3 Candor Toward the Tribunal Lawyer cannot make false statements of fact or law to a court, fail to disclose a material fact, assist in crime or fraud, fail to disclose controlling legal authority, or permit any witness, including criminal defendant, to offer false evidence. A lawyer may refuse to offer false evidence of client. A lawyer who later determines that material evidence is false must take reasonable remedial measures, including urging witness not to present false evidence, withdrawal, and in camera disclosure to the court. Disclose confidential information on the record? No, unless ordered to do so by the judge. Ask for ex parte conference with judge since this issue has nothing to do with the opposing party and counsel. 11 2/7/2014 Attorney/Client Confidentiality and Metadata Ethics Opinion 06-02 Lawyer who sends electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata. Lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. Lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt. The opinion is not intended to address metadata in the context of discovery documents. Confidential Information/Former Clients Amended Bar Rule 4-1.9 Confidential Information/Former Clients Recently amended Bar Rule 4-1.9 distinguishes between disclosure and use of former client's information. Previous rule prohibited use of former client's information to that former client's disadvantage except when “these rules would permit or require or when the information has become generally known.” Amended Rule 4-1.9(c) prohibits lawyer from revealing former client's information except as rules permit or require; however, there is no longer exception in rule for information that has become generally known. 12 2/7/2014 Withdrawal and Non-engagement/Disengagement Non-Engagement letters If there is contact with potential client and no representation results, send nonengagement letter Clearly state general type of matter and that no representation exists-this is attorney’s responsibility under Bar rules Advise of any potential statute of limitations and/or any other deadlines that might affect client’s rights General and not overly specific language to negate later claims of reliance State that decision to decline representation does not necessarily mean that they don’t have a claim. Recommend consultation with another attorney as soon as possible if they wish to pursue any claim Consider informing interested third parties of no representation Withdrawal and Non-engagement/Disengagement Send disengagement letter to client at the end of the representation Attorney’s responsibility to clarify representation has ended May be a good time to advise of availability for future representation of client or someone they know who may need assistance in the future 4-1.16 (d) Withdrawal/termination of representation Protection of Client's Interest. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers and other property relating to or belonging to the client to the extent permitted by law. 13 2/7/2014 Duties to Opposing Parties and Counsel Rule 4-3.4 Fairness to Opposing Party and Counsel A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act; (b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party; Duties to Opposing Parties and Counsel Rule 4-3.4 Fairness to Opposing Party and Counsel (e) in trial, state a personal opinion about the credibility of a witness unless the statement is authorized by current rule or case law, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused; (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless the person is a relative or an employee or other agent of a client, and it is reasonable to believe that the person's interests will not be adversely affected by refraining from giving such information; (g) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter; or (h) present, participate in presenting, or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter. 14 2/7/2014 Duties Regarding False Statements and Evidence Rule 4-3.3 Candor Toward the Tribunal A lawyer cannot make false statements of fact or law to a court, fail to disclose a material fact, assist in crime or fraud, fail to disclose controlling legal authority, or permit any witness, including criminal defendant, to offer false evidence. A lawyer may refuse to offer false evidence of client. A lawyer who later determines that material evidence is false must take reasonable remedial measures, including urging witness not to present false evidence, withdrawal, and in camera disclosure to the court. If court will not permit withdrawal, use narrative approach. Duties of Subordinate Lawyers RULE 4-5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER (a) Rules of Professional Conduct Apply. A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) Reliance on Supervisor's Opinion. A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. 15 2/7/2014 Duties Regarding Non-Lawyers-Failure to Mitigate RULE 4-5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS (b) With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (A) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Ultimate Responsibility of Lawyer. Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer shall review and be responsible for the work product of the paralegals or legal assistants. Conflicts: Business Transactions RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS (a) Business Transactions With or Acquiring Interest Adverse to Client. A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer’s fee or expenses, unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction. (c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship. 16 2/7/2014 Conflicts: Multiple Clients 4-1.7(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. Confidentiality issues between clients may or will require withdrawal. 4-1.8(g) Settlement of Claims for Multiple Clients. A lawyer who represents 2 or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. Advertising 4-7.11 Application of the Rules (a) Type of Media. Unless otherwise indicated, this subchapter applies to all forms of communication in any print or electronic forum, including, but not limited to, newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media. The terms "advertising" and "advertisement“ as used in chapter 4-7 refer to all forms of communication seeking legal employment, both written and spoken. Advertising rules apply to websites and social networking and video sharing sites in addition to other media such as print, TV and radio - Rule 4-7.11(a) 17 2/7/2014 4-7.13 Deceptive and Inherently Misleading Advertisements Advertising A lawyer may not engage in deceptive or inherently misleading advertising. (a) Deceptive and Inherently Misleading Advertisements. An advertisement is deceptive or inherently misleading if it: (1) contains a material statement that is factually or legally inaccurate (2) omits information that is necessary to prevent the information supplied from being misleading; (3) implies the existence of a material nonexistent fact. (b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain: (1) statements or information that can reasonably be interpreted by a prospective client as a prediction or guaranty of success or specific results; (2) references to past results unless such information is objectively verifiable, subject to rule 4-7.14; Comment to Rule: 4-1.6(a), Rules Regulating the Florida Bar, prohibits a lawyer from voluntarily disclosing any information regarding a representation without a client's informed consent, unless one of the exceptions to rule 4-1.6 applies. A lawyer who wishes to advertise information about past results must have the affected client's informed consent. The fact that some or all of the information a lawyer may wish to advertise is in the public record does not obviate the need for the client's informed consent. Advertising 4-7.13 Deceptive and Inherently Misleading Advertisements (b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain: (8) a testimonial: (A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results 18 2/7/2014 Advertising 4-7.13 Deceptive and Inherently Misleading Advertisements Comment: The prohibitions in subdivisions (b)( l) and (b)(2) of this rule preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, if the results are not objectively verifiable or are misleading, either alone or in the context in which they are used. For example, an advertised result that is atypical of persons under similar circumstances is likely to be misleading. A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client's actual damages, is also misleading. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances. An example of a past result that can be objectively verified is that a lawyer has obtained acquittals in all charges in 4 criminal defense cases On the other hand, general statements such as, "I have successfully represented clients," or "I have won numerous trials," may or may not be sufficiently objectively verifiable depending on the facts. For example, a lawyer may interpret the words "successful" or "won" in a manner different from the average prospective client. In a criminal law context, the lawyer may interpret the word "successful" to mean a conviction to a lesser charge or a lower sentence than recommended by the prosecutor, while the average prospective client likely would interpret the words "successful" or "won" to mean 4-7.13 Deceptive and Inherently Misleading Advertisements Advertising Comment: The prohibition against comparisons that cannot be factually substantiated would preclude a lawyer from representing that the lawyer or the lawyer's law firm is "the best," or "one of the best," in a field of law. On the other hand, statements that the law firm is the largest in a specified geographic area, or is the only firm in a specified geographic area that devotes its services to a particular field of practice are permissible if they are true, because they are comparisons capable of being factually substantiated. A testimonial is a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer's firm regarding the quality of the lawyer's services or the results obtained through the representation. Clients as consumers are well-qualified to opine on matters such as courtesy, promptness, efficiency, and professional demeanor. Testimonials by clients on these matters, as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible. 19 2/7/2014 Advertising 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: (1) advertisements that are subject to varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context; (2) advertisements that are literally accurate, but could reasonably mislead a prospective client regarding a material fact; 4-7.19 Evaluation of Advertisements Advertising (a) Filing Requirements. Subject to the exemptions stated in rule 4-7.20, any lawyer who advertises services shall file with The Florida Bar a copy of each advertisement at least 20 days prior to the lawyer's first dissemination of the advertisement. The advertisement must be filed with The Florida Bar in Tallahassee with the filing fee. All advertisements must be filed with The Florida Bar and approved before dissemination. Website Advisory Opinion (d) Opinions on Exempt Advertisements. A lawyer may obtain an advisory opinion concerning the compliance of an existing or contemplated advertisement intended to be used by the lawyer seeking the advisory opinion that is not required to be filed for review by submitting the material and fee specified in subdivision (h) of this rule to The Florida Bar, except that a lawyer may not file an entire website for review. Instead, a lawyer may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website. Takedown” rule and safe harbor for websites. (f) A lawyer will be subject to discipline as provided in these rules for: (5) dissemination of portions of a lawyer's Internet website(s) that are not in compliance with rules 4-7 .14 and 4-7.15 only after 15 days have elapsed since the date of The Florida Bar's notice of noncompliance sent to the lawyer's official bar address. 20 2/7/2014 Advertising 4-7.20 Exemptions from Filing and Review The following are exempt from the filing requirements of rule 4-7.19: (c) a listing or entry in a law list or bar publication; (d) a communication mailed only to existing clients, former clients, or other lawyers; (e) a written or recorded communication requested by a prospective client; (f) professional announcement cards stating new or changed associations, new offices, and similar changes relating to a lawyer or law firm, and that are mailed only to other lawyers, relatives, close personal friends, and existing or former clients; and (g) information contained on the lawyer's Internet website(s). The End According to the Bar’s website, as of January 1, 2014, there were 98,217 Florida lawyers Thanks for your attention and be careful out there! 21