Florida Bar will not prohibit non-certified lawyers from making “objectively verifiable” claims of specialization/expertise

Hello and welcome to this Ethics Alert update which will discuss the fallout from the September 30, 2015 Order and injunction by U.S. Northern District of Florida Judge Robert Hinkle finding that the Florida Bar Rule prohibiting truthful claims of expertise without certification is unconstitutional and enjoining its enforcement.  The order is in 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 I reported in my December 23, 2013 and October 2, 2015 Ethics Alert blogs, 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 violated of Florida 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.

The Florida Bar advised the Searcy Denny law firm that it was prohibited from claiming that it “specializes or has expertise in mass-tort or unsafe-product cases, or even in personal-injury cases, even though the firm undeniably has expertise in these areas.”  The Order also stated: “ Nor can any individual attorney claim to specialize or have expertise in mass-tort or unsafe product cases, even if the attorney handles only cases of that kind, and even if the attorney has successfully handled many such cases.”

According to an article in the October 15, 2015, Florida Bar News by Gary Blankenship, “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.”

Bottom line: The Florida Bar apparently has decided (at this point) to concede that a lawyer may claim that he or she specializes or has expertise in an area of practice even if the lawyer is not certified to practice in that area, with the important caveat that the lawyer must be able to “objectively verify” the claim of expertise or specialization (i.e. prove that it is truthful).

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



About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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