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
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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
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Diligence
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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
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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.
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Sanctions for Lack of Diligence/Communication
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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
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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.
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IOTA Trust Accounts
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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
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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.
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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.”
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IOTA Trust Accounts
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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
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Tips for IOTA Trust Account Management
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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]
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IOTA Trust Account Sanctions
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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
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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
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Fees and Fee Agreements
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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
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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.
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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.
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Attorney/Client Confidentiality
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Rule 4-1.6 Confidentiality of Information
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(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
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Rule 4-1.6 Confidentiality of Information
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(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.
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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.
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Attorney/Client Confidentiality
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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
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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.
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Attorney/Client Confidentiality
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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
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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.
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Attorney/Client Confidentiality
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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
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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.
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Attorney/Client Confidentiality and Metadata
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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
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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.
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Withdrawal and Non-engagement/Disengagement
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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
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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.
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Duties to Opposing Parties and Counsel
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Rule 4-3.4 Fairness to Opposing Party and Counsel
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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
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Rule 4-3.4 Fairness to Opposing Party and Counsel
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(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.
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Duties Regarding False Statements and Evidence
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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
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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.
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Duties Regarding Non-Lawyers-Failure to Mitigate
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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
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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.
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Conflicts: Multiple Clients
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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
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4-7.11 Application of the Rules
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(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)
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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
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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
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Advertising
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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.
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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.
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Advertising
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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
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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!
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