Florida Bar Board of Governors will consider final action on rule amendment regarding use of “expert” and “specialist”

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

jcorsmeier@jac-law.com

www.jac-law.com

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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.
This entry was posted in 2013 comprehensive Florida advertising rule revisions, Attorney ethics, corsmeier, Florida Bar ethics, Florida lawyer advertising, Florida Lawyer comprehensive advertising rule revisions, joe corsmeier, joseph corsmeier, Lawyer advertising, Lawyer advertising rules federal lawsuit, Lawyer advertising specialization and expertise, Lawyer Ethics, Lawyer Professional Responsibility, Uncategorized and tagged , , , , , , , , , , . Bookmark the permalink.

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