March 1, 2005 Regular News Board to consider advertising rules Pursuant to Standing Board Policy 1.60, the Board of Governors of The Florida Bar hereby publishes this notice of intent to consider or take final action at its April 8 meeting on the following proposed amendments to the Rules Regulating The Florida Bar. These matters are additionally governed by Rule 1-12.1, Rules Regulating The Florida Bar. Most amendments to the Rules Regulating The Florida Bar that are finally acted upon by the board must still be formally presented to the Supreme Court of Florida, with further notice and opportunity to be heard, before they are officially approved and become effective. The amendments proposed are recommended by the Advertising Task Force 2004, and the full text of the task force’s recommendations is available on the Bar’s Web site at www.flabar.org, under Organization, Committees, Special, Advertising Task Force 2004. Questions may be addressed to Elizabeth Clark Tarbert, Ethics Counsel, at (850) 561-5780. 4-7.1 Adds new subdivision (b) stating that subchapter 4-7 applies to Florida bar members who advertise inFlorida. Adds new subdivision (c) stating that subchapter 4-7 applies to out of state lawyers who advertise in Florida to provide authorized legal services. Adds new subdivision (e) stating that subchapter 4-7 does not apply to communications between lawyers. Adds new subdivision (f) stating that subchapter 4-7 does not apply to communications between a lawyer and the lawyer’s own family members. Adds new subdivision (g) stating that subchapter 4-7 does not apply to communications between a lawyer and the lawyer’s own current and former clients. Adds new subdivision (h) stating that subchapter 4-7 does not apply to communications at a prospective client’s request. Adds new subdivision (i) stating that the general prohibition against conduct involving dishonesty or misrepresentation applies to all communications by a lawyer. Adds commentary that the lawyer advertising rules do not apply in situations addressed by proposed subdivisions (e) through (i) above. 4-7.2 Reorganizes rule to first set forth required information in proposed subdivision (a), then permissible content in proposed subdivision (b), then general regulations in proposed subdivision (c). Deletes the requirement in subdivision (a)(2) that requires qualifying language to appear with a local telephone number where the lawyer does not have a local bona fide office. Divides permissible content into three subdivisions to address permissible content for lawyers [proposed subdivision (b)(1)], for lawyer referral services [proposed subdivision (b)(2)], and for public service announcements [proposed subdivision (b)(3)]. Adds to permissible content of advertisements military service [proposed subdivision (b)(1)(D)], punctuation marks and common typographical marks [proposed subdivision (b)(1)(L)], the Statue of Liberty, the American flag, the American eagle, the State of Florida flag, an unadorned set of law books, the inside or outside of a courthouse, column(s), and diploma(s) [proposed subdivision (b)(1)(M)]. Consolidates and deletes redundant information in the prohibition against misleading information in subdivision (b)(2) [proposed subdivision (c)(1)]. Deletes references to “unfair” advertising in subdivision (b)(2)(E) and comment. Deletes references to statements that are “likely to create an unjustified expectation about results the lawyer can achieve” in subdivision (b)(1)(B). Adds prohibition against statements that “guarantee results” in proposed subdivision (c)(1)(H). Consolidates the prohibitions against misleading illustrations and misleading visual and verbal portrayals in proposed subdivision (c)(3) [existing subdivisions (b)(3) and (c)(1)]. Deletes the prohibition against advertising for cases in an area of practice that the lawyer does not currently practice in subdivision (b)(5). Deletes as redundant the prohibition against requiring all ads to conform to the requirements of advertising areas of practice in subdivision (c)(2). Adds a prohibition against using terms such as “expert” or “expertise” unless the lawyer is board certified in proposed subdivision (c)(5) and comment [existing subdivision (c)(3)]. Deletes requirement of a disclosure that the lawyer intends to refer cases to another lawyer in subdivision (c)(8). Deletes requirement that required information appear in type size at least one quarter the size of the largest type used in the advertisement, leaving the requirement that all required information be clearly legible in proposed subdivision (c)(10) [existing subdivision (c)(11)]. Reorganizes general regulations to move all issues regarding content to the beginning of the rule and other prohibitions to the end of the rule, renumbering provisions of the rule. 4-7.3 Deletes the required hiring disclosure in subdivision (b) and comment. 4-7.4 Adds the term “unsolicited” to “written communication” in subdivision (b) title and subdivision (b)(1). Deletes prohibition against “unfair” statements or claims in subdivision (b)(1)(E). Moves record retention requirement provision from subdivision (b)(2)(C) to 4-7.7. Adds definition of “prior professional relationship” in the comment. Adds commentary addressing the standard to be used on the required disclosure of how the lawyer obtained the information prompting an unsolicited direct mail in a specific matter in the comment. 4-7.5 Deletes requirement that a nonlawyer spokesperson provide an affirmative disclosure that the person is not a lawyer and not a member of the firm except in ads where it is unclear from the context that the spokesperson is not a lawyer in subdivision (b)(2)(B) and comment. Deletes provision defining “member” of a law firm in the comment as obsolete in light of prior changes to the rule. 4-7.6 Deletes requirement that websites sponsored by a lawyer disclose all jurisdictions where the lawyer is licensed to practice in subdivision (b)(1). Deletes requirement that websites sponsored by a lawyer disclose 1 or more bona fide offices in subdivision (b)(2). Adds that direct mail sent electronically is subject to rule 4-7.2 in subdivision (c)(1). Adds that direct mail sent electronically must contain a subject line that begins with the words “LEGAL ADVERTISEMENT” in subdivision (c)(3). Adds that examples of computer-accessed communications include pop-up ads and banner ads in the comment. 4-7.7 Changes references to the Standing Committee on Advertising or the committee to “The Florida Bar” throughout the rule. Adds that filings must be made to Florida Bar headquarters address in subdivision (a). Adds that a lawyer cannot obtain an advisory opinion reguarding communications that are not subject to subchapter 4-7 in subdivision (a). Adds that a complete filing must include an accurate English translation if the ad appears in another language in subdivision (b)(3). Makes findings of compliance by The Florida Bar binding on The Florida Bar in grievance proceedings, except where misrepresentations are not apparent on the face of the ad in subdivision (f). Adds provision regarding retention of direct written communications to subdivision (h). Adds commentary regarding a safe harbor to encourage lawyers to file their ads and receive approval in advance of using the ads in the comment. 4-7.8 Adds that a public service announcement may contain any permissible content of advertising in subdivision (b). Deletes as redundant that communications sent only to existing clients, former clients or other lawyers are exempt from filing in subdivision (d). Deletes as redundant that communications at a prospective client’s request are exempt from filing in subdivision (e). Deletes as redundant that websites sponsored by a lawyer or law firm are exempt in subdivision (g). 4-7.9 Deletes rule in its entirety as redundant in light of proposed Rule 4-7.1(h). 4-7.10 Renumbers rule to 4-7.9, but no substantive changes. 4-7.11 Renumbers rule to 4-7.10. Adds that lawyer referral services must affirmatively state that they are lawyer referral services in proposed subdivision (a)(10). Rules throughout subchapter 4-7 are renumbered according to the proposed amendments above, requiring renumbering of references to rules throughout subchapter 4-7. The following attorney advertising rules proposals in subchapter 4-7, although not included in the task force’s recommendations, may also be considered: 4-7.4 Extends 30 day ban on unsolicited written communications to criminal cases in subdivision (b)(1)(A) and comment. Adds requirement that a lawyer check with the clerk of court to determine if a prospective client is represented by counsel before sending direct mail in proposed subdivision (b)(3) and comment. 4-7.6 Subjects websites to the requirements of rule 4-7.2 governing lawyer advertising in subdivision (b) and comment. 4-7.7 Requires that advertisements in one or more advertising media be filed for review and receive Florida Bar approval prior to dissemination.
Board to consider advertising rules
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