APPENDIX D

Final Report of the

Advertising Task Force 2004

REPORT AND RECOMMENDATIONS TO THE FLORIDA BAR BOARD OF GOVERNORS

BY THE ADVERTISING TASK FORCE 2004 Respectfully submitted by the Advertising Task Force 2004 Mr. Manuel R. Morales, Jr., Chair, Miami Mr. Charles Chobee Ebbets, Vice-chair, Daytona Beach Mr. Basil L. Bain, Naples Mr. John C. Bales, Tampa Mr. Linzie F. Bogan, Tallahassee Mr. John R. J. Bullard, Live Oak Prof. Debra M. Curtis, Fort Lauderdale Mr. William F. “Casey” Ebsary, Jr., Tampa Mr. Michael R. Hammond, Orlando Mr. Kelly K. Huang, Fort Myers Mr. S. Curtis Kiser, Tallahassee Ms. Rozalyn Landisburg, Hollywood Mr. Theodore J. Leopold, Palm Beach Gardens Mr. Halley Bronson Lewis, III, Tallahassee Ms. Ann E. Meador, Pensacola Mr. Shane T. Munoz, Tampa Ms. Kelly A. O’Keefe, Tallahassee Mr. John L. Remsen, Jr., Fort Lauderdale Mr. Robert A. Rush, Gainesville Mr. David L. Sellers, Pensacola Mr. Bill Wagner, Tampa Mr. Matthew R. Willard, Tallahassee

Introduction

The Advertising Task Force 2004 was appointed in February 2004 and given the

following charge:

The Advertising Task Force 2004 is charged with reviewing the attorney advertising rules and recommending changes to the rules if deemed necessary, including any changes to clarify the meaning of the rules and provide notice to Florida Bar members of the rules= requirements. Included within this charge is an analysis of the advertising filing and review requirement, including consideration of mandatory review prior to dissemination of advertisements. The task force should expect to make a final report to The Florida Bar Board of Governors in year 2004-05.

The task force comprised lawyers with widely varying practice areas, backgrounds, experience,

and geographic location. The task force included lawyers who advertise extensively and lawyers

who do not advertise at all. The task force included three current members of the Standing

Committee on Advertising and two current members of The Florida Bar Board of Governors, all

of whom had varying degrees of experience interpreting the existing advertising rules.

The task force met numerous times in person and by telephone conference. Copies of the

meeting minutes are attached as appendix A. The task force held an organizational meeting in

March 2004. The task force determined that its analysis must be completed by balancing three

interests: the protection of the public from false and misleading advertising, the protection

afforded to commercial speech by the First Amendment, and the protection of the justice system

and profession from denigration by improper advertising. Task force members agreed that the

rules should be clear and consistent. The task force determined to divide into subcommittees to

review the rules in depth, then meet as a group to review each subcommittee’s recommendations.

The task force held a special meeting at The Florida Bar’s Annual Meeting and invited

lawyers to comment on the task force’s charge. Notices were posted in the Bar News and on the

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Bar’s website. The chair of the task force sent a letter to the chair of each Florida Bar section

and standing committee, as well as the voluntary bar associations, inviting comment on the task

force’s charge and any proposals by Bar members. A copy of the letter is attached as appendix

B. Numerous Bar members provided written comments and attended the meeting to provide

suggestions to the task force. A summary of written comments received is attached as appendix

C.

The task force then drafted interim changes that were noticed in the Bar News and posted

on the Bar’s website. The task force sent a letter to the chair of each Florida Bar section and

standing committee, as well as the voluntary bar associations, inviting comment on the interim

draft. A copy of the letter is attached as appendix D. The task force held a special meeting in

conjunction with the Bar’s Midyear Meeting, reviewed numerous written comments, and heard

from numerous Bar members regarding various proposals. A summary of written comments

received is attached as appendix E. The task force then made final decisions on its

recommendations to the board. A summary of the significant recommendations appear below.

The full text of recommendations, in legislative format, appears at appendix F. Not all decisions

of the task force were unanimous. One task force member wrote a dissent, which is attached as

appendix G.

Significant Recommendations

4-7.1

The task force discussed adding a definition of “advertising” or “advertisement” to this

general rule. Ultimately, the task force determined that defining “advertisement” was

counterproductive. Because of rapidly changing technology, any laundry list of

communications subject to the attorney advertising rules would likely be under-inclusive by the

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effective date of a rule change. The task force instead decided to address communications not

covered by the rules, so lawyers would clearly be on notice that certain communications are not

covered by the rules. The task force therefore recommends the addition of new subdivisions (e)

through (h), which state that the attorney advertising rules do not apply to communications

between lawyers, between a lawyer and the lawyer’s own family members, between a lawyer and

the lawyer’s own current and former clients, and between a lawyer and a prospective client at

that prospective client’s request. To ensure members’ compliance with general standards

relating to their conduct, the task force also recommends adding new subdivision (i), which

states that lawyers cannot engage in conduct involving deceit or misrepresentation in any form of

communication, regardless of whether the communication is governed by the attorney

advertising rules. See Rule 4-8.4(c), Rules Regulating The Florida Bar. The task force also

recommends adding commentary that addresses these concepts.

To complement the new proposed subdivision setting forth the communications not

covered by the attorney advertising rules, the task force also recommends adding new

subdivision (b), stating that subchapter 4-7 applies to Florida Bar members who advertise in

Florida. Existing subdivision (b) is renumbered as subdivision (d).

The task force also extensively discussed the issue of lawyers licensed in other

jurisdictions advertising in Florida. In 1997, The Florida Bar asked the Supreme Court of

Florida to adopt rules changes that would require lawyers licensed in other jurisdictions who

advertise in Florida to comply with the Rules Regulating The Florida Bar governing lawyer

advertising. The court declined to adopt those rules changes, stating that such advertising in

Florida was the unlicensed practice of law. Amendments To Rules Regulating The Florida Bar -

Advertising Rules, 762 So. 2d 392 (Fla. 1999). The court then invited the Bar to submit

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amendments refining chapter 10 of the Rules Regulating The Florida Bar, which address the

unlicensed practice of law. Id. The Florida Bar did so, and the court adopted rule 10-2.1(a)(3) in

2002, which states as follows: “It shall constitute the unlicensed practice of law for a lawyer

admitted in a state other than Florida to advertise to provide legal services in Florida which the

lawyer is not authorized to provide.” Amendments to Rules Regulating the Florida Bar, 820 So.

2d 210 (Fla. 2002). That rule amendment left a loophole: the rule does not address advertising

by lawyers licensed in other jurisdictions advertising for services they are authorized to provide.

Although these areas are limited, it is incongruous to allow lawyers licensed in other

jurisdictions to disseminate advertisements that do not follow the strict requirements adopted by

the court to protect the residents of the state of Florida. The Special Commission on the

Multijurisdictional Practice of Law recommended changes to the Rules Regulating The Florida

Bar to address advertisements by out-of-state lawyers for authorized legal services. The Florida

Bar petitioned the court to adopt these and other changes in case number SC04-135. The task

force recommends adding new subdivision (c) that complements the pending rules changes.

New subdivision (c) states that subchapter 4-7 applies to out-of-state lawyers who have

established a regular practice in Florida to provide legal services they are authorized by law to

perform, and who advertise in Florida to provide those authorized services.

4-7.2

Rule 4-7.2 sets forth the requirements that govern all lawyer advertising and unsolicited

direct mail. Probably the most extensive changes are made to this rule, in part because of the

length of the existing rule. Many changes are organizational, to provide greater clarity and

guidance in using the rule. The rule is reorganized to first set forth required information in

proposed subdivision (a), then permissible content in proposed subdivision (b), then general

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regulations in proposed subdivision (c). Many of the organizational changes require

renumbering of other subdivisions and numbering changes where the rules are referenced

elsewhere.

The task force recommends deleting 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. The task force’s position is that this subdivision already requires the

lawyer to disclose at least one bona fide office location. If the actual physical location of the

lawyer is important to a prospective client, the client will ask the lawyer.

The task force recommends reorganizing subdivision (b), which sets forth permissible

content of advertisements, 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)). The task force believes that the

rule will have greater clarity and provide better guidance with this change.

The task force reviewed the list of permissible content of advertisements to determine if

there were possible changes that would provide better guidance to Florida Bar members and

provide them with greater latitude to use information that is relevant, useful, factually verifiable,

and not misleading. The task force recommends adding to the 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)).

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To better organize subdivision (b)(2) and delete confusing repetition, the task force

recommends consolidating and deleting redundant information in the prohibition against

misleading information; the proposed subdivision is numbered (c)(1).

The task force recommends deleting the term “unfair” throughout the rules because it

believes the term is unclear, overbroad, and unenforceable, deleting references to “unfair”

advertising in subdivision (b)(2)(E) and the comment to rule 4-7.2.

At the request of the board, the task force carefully examined subdivision (b)(1)(B),

prohibiting statements that are “likely to create an unjustified expectation about results the

lawyer can achieve.” Bar staff reported to the task force that interpretation of this rule is one of

the most difficult areas of the attorney advertising rules. The board disagrees with Standing

Committee on Advertising interpretation of this rule provision more often than any other rule

provision. The task force initially discussed defining “likely to create an unjustified expectation”

in either the rule or the comment. The task force found the term to be unclear and incapable of

adequate definition to provide guidance to Bar members. The task force ultimately determined

to recommend that the rule provision be deleted and replaced with a prohibition against

statements that “guarantee results” in proposed subdivision (c)(1)(H).

To better organize this rule, the task force also recommends consolidating the

prohibitions against misleading illustrations and misleading visual and verbal portrayals in

proposed subdivision (c)(3) [existing subdivisions (b)(3) and (c)(1)].

The task force recommends deleting the prohibition against advertising for cases in an

area of practice that the lawyer does not currently practice in subdivision (b)(5). A majority of

the task force believes that, although the rationale behind the rule is to address the “brokering” of

cases, the regulation is overbroad and not evident from the language of the rule itself.

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To simplify the rule, the task force recommends deleting the prohibition in subdivision

(c)(2) against requiring all ads to conform to the requirements of advertising areas of practice,

because it is redundant.

The Standing Committee on Advertising, through its decisions, has determined that use

of terms such as “expert” or “expertise” implies that a lawyer is board certified in the same way

that the words “specialist” or “specializing” do. To put lawyers on notice of this requirement,

the task force recommends adding to proposed subdivision (c)(5) and the comment that use of

such terms is prohibited unless the lawyer is board certified.

The task force recommends deleting the requirement in subdivision (c)(8) that the lawyer

disclose in an advertisement that the lawyer intends to refer cases to another lawyer. A majority

of the task force believes that, although the rationale behind the rule is to address the “brokering”

of cases, the regulation is overbroad and not evident from the language of the rule itself.

Lawyers are permitted to pay what is commonly referred to as “referral fees” if there is a written

agreement between the client and each attorney, and each lawyer assumes joint responsibility

and remains available to consult with the client. Rule 4-1.5(g)(2), Rules Regulating The Florida

Bar. The referring lawyer is providing a legal service to the client by assuming joint

responsibility for the matter and being available for consultation with the client. A majority of

task force members feels it is inappropriate to try to regulate otherwise permissible conduct

through an advertising rule. A majority of the task force also found the rule to be unenforceable.

The task force also recommends deleting the requirement in existing subdivision (c)(11)

[proposed subdivision (c)(10)] that required information to be printed in type size at least one

quarter the size of the largest type used in the advertisement. The task force finds the

requirement to be overbroad and burdensome to Bar staff as well as advertising lawyers. There

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are required disclosures that may be slightly smaller than one-quarter the type size of the largest

type, yet still be perfectly readable and therefore adequate. This deletion would leave untouched

the requirement that all required information be clearly legible.

4-7.3

Rule 4-7.3 addresses print advertisements. The task force recommends deleting the

following required disclosure for print advertisements in subdivision (b) and the rule’s comment:

"The hiring of a lawyer is an important decision that should not be based solely upon

advertisements. Before you decide, ask us to send you free written information about our

qualifications and experience." The hiring disclosure applies only to print advertisements that

include content other than the permissible content of advertisements currently listed in rule 4-

7.2(c)(12). The task force believes that the hiring disclosure requirement was well-intended and

served its purpose in the early years of attorney advertising. The task force questions its efficacy

now, and believes that few, if any, members of the public actually read it.

4-7.4

Rule 4-7.4 governs unsolicited direct mail communications. The task force recommends

adding the term “unsolicited” to “written communication” in the title to subdivision (b) and

within subdivision (b)(1). The change clarifies that the rule is applicable only to written

communications that are sent to recipients who have not requested information from the lawyer

or law firm.

The task force considered extending the 30-day ban on unsolicited direct mail from

personal injury to criminal defense and civil traffic matters. In response to the task force’s

interim report, the task force received a large number of comments from Florida Bar members.

More comments were received on the proposed extension of the 30-day rule than any other issue,

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and the comments were overwhelmingly negative. Twelve Florida Bar members and two

citizens attended the task force’s January 2005 meeting. All of them spoke on this issue, and

they stated numerous reasons why the proposed change not only did not serve Florida Bar

members, it did not serve members of the public, who were being provided with valuable

information through these communications. After reviewing the written comments and hearing

from those who attended the meeting, the task force voted unanimously against adopting the

change.

The task force recommends deleting the prohibition against “unfair” statements or claims

found in subdivision (b)(1)(E). The task force recommends deleting the term “unfair”

throughout the rules because it believes the term is unclear, overbroad, and unenforceable.

The task force also recommends deleting from subdivision (b)(2)(C) a provision

regarding retention of direct written communications. The language is being moved to rule 4-

7.7(h), because it makes more sense to include the provision with other language addressing

records retention, so all information about records retention is located in the same rule provision.

The task force recommends adding information defining “prior professional relationship”

in the comment to the rule. The issue is an important one, because a lawyer may directly solicit

those with whom a lawyer has a “prior professional relationship.” The term has never been

defined, except through decisions of the Bar’s Standing Committee on Advertising. The

Standing Committee on Advertising initially took the position that the term meant a prior

attorney-client relationship, but later decisions expanded the term to include expert witnesses and

others. The task force discussed replacing the term “prior professional relationship” in the rule

with the term “prior lawyer-client relationship,” but decided that the prior Bar committees must

have meant to be somewhat more expansive than that, because the term “lawyer-client

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relationship” could have been used originally, had that been intended. The task force determined

that the term “professional” must have been used deliberately and must have been used to

describe the lawyer’s capacity as a professional as opposed to the person to be contacted. The

task force also decided that the term “relationship” must encompass a personal, direct

relationship with another, as opposed to a mere acquaintance. The recommended additions set

forth these concepts and provide examples intended to provide guidance to Florida Bar members

on this issue.

Rule 4-7.4 requires that a lawyer sending unsolicited direct mail that was “prompted by a

specific occurrence” to inform the recipient where the lawyer obtained the information that

caused the lawyer to send the communication. The task force recommends adding commentary

addressing the standard to be used in determining if the lawyer has provided the appropriate

disclosure. The task force believes the appropriate standard should be that the disclosure allows

the recipient to locate for himself or herself the information that prompted the communication.

4-7.5

Rule 4-7.5, addressing television and radio advertisements, was amended by the Supreme

Court of Florida during the course of the task force’s tenure. Because the changes are so recent,

the task force believes significant amendments to the rule are inappropriate at this time.

However, the task force did believe that two minor changes should be made.

First, the rule currently requires that, if a nonlawyer spokesperson is used, that

spokesperson must make an affirmative verbal disclosure that the person is not a lawyer and is a

spokesperson for the lawyer or law firm. The task force determined there are situations in which

it is clear to the advertisement’s recipients that a nonlawyer spokesperson is being used. One

example is the common use of disk jockeys to record radio advertisements. The task force

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doubts that anyone would be led to believe that the same person who gives the news and weather

reports, as well as recording advertisements for other local businesses, is a lawyer who is a

member of the firm being advertised. In such situations, the task force believes it is unduly

burdensome to require that the advertising lawyer or law firm use a portion of its limited radio

time to state the obvious: that the announcer is not an attorney. However, the task force believes

it is entirely appropriate to require an affirmative disclosure where it is not clear from the context

of the advertisement that the spokesperson is not an attorney. The task force therefore proposes

amendments to subdivision (b)(2)(B) and the comment that would require an affirmative

disclosure that the spokesperson is not a lawyer only where it is unclear from the advertisement

that that is the case.

Finally, the task force recommends deleting a paragraph in the comment that defines

“member” of a law firm. The task force believes that the commentary is obsolete in light of

changes made to the rule by the court in Amendment to the Rules Regulating The Florida Bar,

875 So. 2d 448 (Fla. 2004)

4-7.6

Rule 4-7.6 governs computer-accessed communications such as websites, electronic mail,

and banner advertisements. The task force extensively discussed the issue of websites sponsored

by a lawyer or law firm, including how websites are accessed by members of the public, the

swift technological advances that continue to be made, the type of information typically provided

on websites, and the generally accepted principle of free flow of information through the

Internet. The task force concluded that, typically, viewers would not access a lawyer’s website

by accident, but would be searching for that lawyer, a lawyer with similar characteristics, or

information about a specific legal topic. The task force therefore concluded that websites should

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be treated as information on request and therefore, as dictated by new rule 4-7.1(h), not subject

to the attorney advertising rules. The task force also concluded that a person with computer

access and search capability would be at least somewhat Internet savvy and understand that a

lawyer is not necessarily located in a specific geographic location near the user or does not

necessarily have the ability to handle the user’s legal matter just because the user found the

website on the Internet. The task force therefore recommends deleting the requirement in

subdivision (b)(1) that websites disclose all jurisdictions where the lawyer is licensed to practice

and the requirement in subdivision (b)(2) that websites disclose one or more bona fide offices.

The task force recommends minor changes to subdivision (c), addressing electronic mail.

Although the task force believes that electronic mail already is governed by rule 4-7.2, the task

force recommends adding that express statement to subdivision (c)(1) of rule 4-7.6 to provide

clarity for Bar members. The task force was concerned that subdivision (c)(3) was not restrictive

enough, because an unscrupulous lawyer could have so much information in the subject line that

the “Legal Advertisement” required by the existing rule could be effectively “buried,” whereas

the task force believes that the court intended that the “Legal Advertisement” mark be prominent

in the subject line. The task force therefore recommends amending subdivision (c)(3) to state

that direct mail sent electronically must contain a subject line that begins with the words

“LEGAL ADVERTISEMENT.”

The task force also recommends adding commentary that examples of computer-accessed

communications include pop-up ads and banner ads to provide further guidance to Bar members.

4-7.7

Rule 4-7.7 sets forth the requirements for filing advertisements and receiving an opinion

from The Florida Bar. The task force discussed extensively the issue of whether to recommend

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prior review of advertisements. The task force recognizes Bar leadership’s concern that

noncomplying advertisements that run concurrently with filing often reach thousands of viewers,

and even run their course, before the Bar has the ability to review the advertisements.

Nonetheless, the task force ultimately determined by unanimous vote not to recommend

amending the rules to require prior approval of advertisements before the advertisements may be

disseminated. The task force instead determined that lawyers should be encouraged, but not

required, to obtain prior approval. In order to encourage lawyers to obtain prior approval, the

task force recommends amending subdivision (f) to provide that findings of compliance by The

Florida Bar shall be binding on The Florida Bar in grievance proceedings, except where

misrepresentations are not apparent on the face of the ad. The task force believes that this

change, coupled with the addition of commentary encouraging lawyers to seek prior approval to

obtain a “safe harbor” for their advertisements, will encourage lawyers to obtain Bar approval

before disseminating their advertisements.

Many recommended changes to the rule regulating the filing requirement are technical in

nature or have been recommended by Bar staff to address issues that come up through the filing

process. For example, the task force recommends changing references to the Standing

Committee on Advertising or the committee to “The Florida Bar” throughout the rule, because

the first level of review is performed by Bar staff. The task force also recommends amending

subdivision (a) to state that filings must be made to The Florida Bar headquarters address, to

address the issue that attorneys sometimes attempt to file with the branch offices, affecting the

Bar’s ability to comply with the 15-day deadline. Another recommendation by Bar staff

endorsed by the task force is the addition to subdivision (b)(3) that a complete filing must

include an accurate English translation if the ad appears in another language.

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The rule allows a lawyer to file and obtain an advisory opinion even on advertisements

that are exempt from the filing requirement. The task force recommends in rule 4-7.1 that a

number of communications be exempt, not just from the filing requirement, but from the attorney

advertising rules altogether. Such communications remain subject to the general prohibition

against conduct involving deceit, dishonesty, or misrepresentation under rule 4-8.4(c). Because

the filing requirement requires review for compliance under the attorney advertising rules, such

communications cannot be reviewed under rule 4-7.7. Therefore, the task force recommends

adding to subdivision (a) that a lawyer cannot obtain an advisory opinion regarding

communications that are not subject to the attorney advertising rules as set forth in subchapter

4-7.

The task force also recommends adding to subdivision (h) a provision regarding retention

of direct written communications. The language is being moved from rule 4-7.4, because it

makes more sense to include the provision with other language addressing records retention, so

all information about records retention is located in the same rule provision.

4-7.8

Rule 4-7.8 addresses exemptions from the filing requirement. The task force extensively

discussed public service announcements as set forth in subdivision (b). The current rule

seemingly prohibits any information about the lawyer other than the lawyer’s name and

geographic location. The task force concluded that lawyers’ sponsorship of charitable and civic

events is desirable and should be encouraged. The task force therefore recommends amending

subdivision (b) to provide that a public service announcement may contain any of the permissible

content of advertising listed in rule 4-7.2.

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The task force recommends addressing that the attorney advertising rules do not apply to

certain communications in rule 4-7.1 discussed above. Because the issue is addressed in rule 4-

7.1, the task force determined that it is unnecessary to again state that these communications are

exempt from the filing requirement in rule 4-7.8. The task force therefore recommends deleting

as redundant the following subdivisions providing exemptions from filing: subdivision (d)

concerning communications sent only to existing clients, former clients or other lawyers;

subdivision (e) addressing communications at a prospective client’s request; and subdivision (g)

regarding websites sponsored by a lawyer or law firm.

4-7.9

Rule 4-7.9 delineates regulations for information provided to a prospective client at that

client’s request. In light of the task force’s recommendation to adopt a rule provision excluding

such information from application of the attorney advertising rules, the task force recommends

deleting this rule in its entirety as redundant in light of proposed 4-7.1(h).

4-7.10

No substantive changes are recommended in this rule, governing law firm names and

letterhead, but the task force recommends renumbering it in light of the recommendation to

delete rule 4-7.9 in its entirety.

4-7.11

Rule 4-7.11 governs a lawyer’s participation in a lawyer referral service. The task force

recommends adding subdivision (a)(10), requiring that lawyer referral services affirmatively

state in advertisements that they are lawyer referral services. The change comes at the request of

the Standing Committee on the Unlicensed Practice of Law. Mr. Wayne Thomas, who was then

vice-chair of the committee, attended the June 24, 2004 meeting of the task force and indicated

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that there are lawyer referral services whose names do not clearly indicate that they are not law

firms and whose advertising does not affirmatively state that they are lawyer referral services.

The opinion of the Standing Committee on the Unlicensed Practice of Law is that the practice is

misleading to the public. Based on these statements, the task force recommends that the rule

change be adopted. Additionally, the task force recommends renumbering the rule to 4-7.10, in

light of the recommended deletion of rule 4-7.9.

APPENDIX A

MINUTES OF ADVERTISING TASK FORCE MEETING MINUTES

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

March 9, 2004 8:30 a.m. until 4:00 p.m. Tampa Airport Marriott

Tampa, Florida Chair Manuel R. Morales, Jr. presided over the meeting. Seventeen members attended: Bain Bales Bogan Bullard Curtis Ebbets

Ebsary Hammond Huang Landisburg Leopold Meador

Morales Munoz Remsen Sellers Wagner

Guests President-elect Kelly Overstreet Johnson, Benjamin H. Hill, III, The Florida Bar’s outside counsel Barry S. Richard (by telephone), and staff members John Anthony Boggs, Mary Ellen Bateman, and Elizabeth Clark Tarbert also attended the meeting. The committee took the following actions: 1. Heard introductions and opening remarks by chair, Manuel R. Morales, Jr. 2. Received the charge to the committee by President-elect Kelly Overstreet Johnson. The Advertising Task Force 2004 is charged with reviewing the attorney advertising rules and recommending changes to the rules if deemed necessary, including any changes to clarify the meaning of the rules and provide notice to Florida Bar members of the rules’ requirements. Included within this charge is an analysis of the advertising filing and review requirement, including consideration of mandatory review prior to dissemination of advertisements. The task force should expect to make a final report to The Florida Bar Board of Governors in year 2004-05. 3. Heard remarks and advertising regulation history by 1995-97 Joint Presidential Task Force on Advertising chair, Benjamin H. Hill, III. Mr. Hill stated that this task force is the third time there has been a major review of the attorney advertising rules in Florida Bar history. The first commission was appointed in the late 1980's in response to the proliferation of attorney advertising in the wake of the Bates decision. He urged task force members to read the Bates decision, authored by Justice Blackmun. Justice Blackmun stated the opinion of the majority, that the court was not persuaded that attorney advertising will be inevitably misleading. The justice also stated that it is doubtful that any attorney could advertise flat fees, and that the only services that lend themselves to advertising are simple, routine legal services. The court’s belief was that advertising would be limited, and that areas of practice such as personal injury and criminal do not lend themselves to advertising. Justices Powell and Burger wrote dissenting opinions. They feared that advertising would be injurious to the people who rely on advertising

A-2

to make such decisions. The justices’ insight projections included that the entire profession would be changed by advertising. 10-15 years after Bates, Justice Powell wrote an article stating that the decision in the Bates case was one of the worst for the profession. Mr. Hill stated his opinion that the profession has changed in the last 20-30 years; more lawyers believe that legal practice is a business, not a profession.

In the 1980's, the first advertising was benign, was for routine legal services, and took the form of what is known as “tombstone” advertising. Advertising agencies and marketers got involved when they realized they could sell attorney services and saw an enormous opportunity. Advertising became more misleading and deceptive, causing the formation of the first Florida Bar commission in the 1980's, once the bar came to the realization that attorney advertising needed to be regulated.

Task force member Kelly Huang entered the meeting.

The first commission engaged in a two year study of attorney advertising. The bar hired Magid and Associates, who found that people did not trust attorneys who advertised and that people’s opinion of the judicial system changed because of attorney advertising. There was also at that time a lot of media attention focused on attorney advertising in the wake of a tragic accident involving schoolchildren in Levy County. It was widely reported in the media that attorneys were taking advantage of this tragedy to line their own pockets.

The commission faced the task of regulating advertising within constitutional limits, in light of the commercial speech doctrine, which was refined in several cases before and after Bates. A number of commission members were in favor of following Iowa’s approach in allowing only tombstone advertising, but determined ultimately against that approach. The commission’s focus was to protect the public and to give attorneys as much guidance as possible, balancing the various competing factors.

Florida was the first state to draft such rules, including a review requirement. Many states obtained copies of Florida’s rules and adopted similar rules.

One of the rules adopted was a ban on direct mail solicitations within the first 30 days following a personal injury, which was upheld by the U.S. Supreme Court in The Florida Bar v. Went For It, Inc. Five justices found that the bar had sufficient evidence to show a substantial government interest in regulating and that the regulation was reasonable, not being an outright ban. The bar submitted anecdotal evidence such as citizen complaints, articles, editorials, the Magid & Associates survey, and the Young Lawyers Division survey of yellow pages advertisements. The Went For It case was the first decision to uphold advertising regulation.

The second advertising task force was appointed in 1995 to improve the attorney advertising rules. Most of the rules recommended by that task force are still in place today. New rules were adopted that addressed television and Internet advertisements.

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Those in favor of unrestricted attorney advertising claim that advertising makes legal services more available and promotes competition when attorneys advertise fee schedules. There has been very little evidence that such competition has occurred.

The advertising rules should be examined periodically. As staff, the board, and grievance committees have more experience in dealing with the rules, they can point out problems that should be addressed. Mr. Hill urged the task force members not to abandon the rules, but the keep some form of restraint on advertising. The potential to mislead the public exists; if advertising is allowed, it must be honest and cannot mislead the public.

Task force member Wagner asked Mr. Hill’s opinion on what he perceives as the biggest problem in attorney advertising. Mr. Hill responded that the biggest problem that has not been previously addressed is the frequency and pervasiveness of attorney advertising.

In response to a question from task force member Remsen, Mr. Hill responded that if the task force is able to make distinctions between sophisticated and more naive consumers in the advertising rules, great.

In response to a question from Division Director Mary Ellen Bateman, Mr. Hill responded that public hearings were held by the earlier commissions and were helpful. Few members of the public attended, but markets, newspaper editors and advertising attorneys attended at the encouragement of the commission.

In response to a question from task force member Wagner, Mr. Hill responded that courts are receptive to advertising regulation if a proper record is developed and the regulation is reasonable.

In response to a question from task force chair Morales, Mr. Hill answered that there is some argument that advertising provides some useful information to the public. The earlier commissions felt that advertising of price information would be helpful and would promote competition, but that has not been borne out in practice.

4. Heard an overview of constitutional issues relating to advertising regulation by the bar’s outside counsel Barry S. Richard in executive session. Committee chair Manuel R. Morales, Jr. cautioned task force members not to disclose Mr. Richard’s advice except for discussions with other task force members, Board of Governors members, or bar staff, to preserve attorney-client privilege. 5. Heard an overview of advertising rules and evaluation of advertisements by Ethics Counsel Elizabeth Clark Tarbert. 6. Heard a report from Legal Division Director John Anthony Boggs regarding the Statewide Advertising Grievance Committee. The committee was appointed two years ago based on the board’s realization that there was widely disparate treatment of advertising cases across the state. The purpose of the grievance committee was to promote more uniformity in the treatment of such cases.

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7. Discussed task force members’ general views on advertising, advertising regulation, and the task force’s charge.

Task force member Wagner commented that he was opposed to analyzing the rules without first addressing the major issues confronting the bar regarding advertising. Tinkering with existing rules is a bureaucratic trap, and involves short-term solutions to perceived problems, sometimes creating new problems. The task force must address two issues. The first is the benefit to the public, because the only reason advertising can be justified is that it provides a benefit to the public. The second is the perception of the actual worth of the legal profession itself, the extent to which advertising affects that perception, and if the bar can correct that effect. The first advertising commission had a marketer speak about the concepts involved in marketing and obtaining market share. To obtain market share, an advertiser must demonstrate that the quality of the product the advertiser is offering is better than others. If comparison on quality is prohibited, advertisers can compete only in two things: the first is competing on the cost of services and the second is competing with frequency of advertising. The bar must face the problems created by these market forces, and prior approval of advertisements will not accomplish improvement in services to the public. The task force should consider prior approval of mass market advertising only, i.e., radio and television. The task force should consider having very broad rules of don’t lie, cheat or steal, then give staff broad prosecutorial discretion. The task force should also do a survey to find out the public’s perception of lawyer, courts and the justice system.

Task force member Landisburg commented that the task force should discuss the issue of improving public perception. The task force should also break into subcommittees to analyze the rules and propose changes. Task force member Wagner responded that the only purpose of regulating advertising that is justified is to benefit the public or benefit the court system. We are on the verge of another major change in advertising, which is the Walmartization of attorneys created by advertising attorneys. The task force must find out what the public thinks, otherwise the task force will lack the capability of making intelligent decisions.

In response to a question from task force member Leopold, President-elect Johnson responded that she had no preconceived ideas of what decisions the task force would make about specific rules. At the end of the day, she wants the rules to be clear and to be applied consistently to all attorneys. Her service on the board and in hearing advertising appeals come before the board leads her to the conclusion that the rules are unworkable in their current state. Some regulation of advertising clearly is required, but also clearly the current regulations can be improved. Additionally, because the board has seen so many advertisements that do not comply go through the advertising review process while the advertisement is being disseminated and seen so many advertisers seemingly abuse the process, that she would like the advertising task force to consider the issue of prior review of advertisements.

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Task force member Sellers commented that he agreed with task force member Wagner’s comment that the rules should be written in broad principles, that all of the rules should be written from the perspective of misleading the public. Advertising is here to stay and attorneys are in the business of law to make money. The rules should be clear and consistent. The task force should also address ideas for enforcement.

The task force discussed whether or not survey information would be helpful to accomplish their mission. Task force member Munoz commented that there were many task force members who were very experienced in dealing with the rules. Without having done a complete review of the rules, he cannot tell what survey information might be helpful, but the task force can analyze many of the rules without the help of survey information.

Task force vice-chair Ebbets commented that the board of governors spent over two hours at the last board meeting on advertising issues at a meeting with many important issues for the board to address. That, and his prior board experience, lead him to the conclusion that the advertising rules must be simple, clear, and fair to all lawyers.

Task force member Bales commented that the task force needs to be fair. The task force cannot just talk about lawyers who have large television advertising campaigns, but must also recognize the fact that large, respected, silk-stocking law firms also have large advertising campaigns and violate the advertising rules as much as lawyers with large television advertising campaigns. The goal of the task force cannot be to prevent television advertisers from becoming larger. The task force members need to recognize that each of its members advertise in some way.

Task force member Meador commented that the task force must answer the question of the purpose of the rules regulating attorney advertising. The task force members must apply the same standard in looking at all of the attorney advertising rules.

Task force member Huang commented that all task force members can agree on the issue that the perception of the profession among members of the public is on the downturn. The task force does not need surveys to accomplish its work or to obtain information on what is offensive to the public. Protection of the public must be the task force’s paramount goal, with improving the profession as a secondary goal.

Task force member Bain commented that it is important for task force members to have an understanding of their purpose, and that all can agree that a good rule has clarity and is easy to enforce. Task force members must ensure that their motivation is pure - it cannot be to control big marketers. Their objective goal should be that advertisements cannot be deceptive and cannot be for the personal benefit of task force members, such as being anti-competitive.

Task force member Hammond commented that he is in the unusual situation of being an attorney who has not practiced in years because he is the marketer for an organization that supports real estate attorneys. He feels it is important for the task force to guard

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against taking too monolithic an approach and to move away from the notion that all advertising is bad or hurts consumers. We have lived in a consumer society a long time. Advertising in itself is not bad, although some individual advertisements are bad. Advertising can fulfill a meaningful, worthwhile and educational purpose. The Fund spends several million dollars a year on advertising and researched the issue of attorney advertising before making that investment. Consumers responded to The Fund that they do not put all attorneys in the same boat and do not find that all attorneys who advertise are bad. He asked if there is an inherent presumption behind the rules that advertising is bad. If ads are effective, the advertisement does not comply with the rules and if the ads do comply, they are not effective.

Task force member Wagner responded that when advertisements show the consumers they have a need for services, there is no problem. Most personal injury lawyers advertise to show that consumers need them personally, not that they need legal services in general. Personal injury attorney advertising is having a negative effect on the public’s respect for courts. He is interested in determining why consumers hire one attorney as opposed to another. He believes the task force should learn more facts before starting to change the rules. Advertising can be done in such a way as to help the public.

Task force member Remsen commented that there is a difference between sophisticated consumers and uninformed consumers, and the rules should treat those two types of consumers differently. For example, many business people frequently use legal services and are therefore sophisticated consumers of legal services, so the rules should treat them differently.

Task force member Bogan commented that he believes advertising regulation involves free market issues. He is unsure of what type of consumer should be termed “sophisticated.” As an example, his mother is a retired school teacher who is well-educated and should be considered sophisticated. However, she selected a personal injury attorney on the basis of the size of yellow pages advertisement. He feels uncomfortable deciding what is deceptive, because it is subjective. Bar staff deals with these issues on a daily basis and should be relied on. His goal is to make the process easier.

Task force member Meador commented that the bar cannot protect consumers from themselves. The task force needs to determine the purpose of the rules.

Task force member Remsen commented that the more information provided to consumers, the better informed the consumer is and the better able to make decisions. 80% of consumers do not know a lawyer. Advertising is here to stay and consumers need to know how to hire a lawyer.

Task force member Bullard commented that his understanding is that advertising began so that younger lawyers, particularly minorities and women, could become known as providing legal services to the public.

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Task force member Landisburg commented that the task force does not need to reinvent the wheel. The task force’s mission is to clarify the rules. The task force cannot just discuss philosophy, but must set up a structure so that it can accomplish its mission.

Task force member Leopold commented that the task force cannot review the rules until the task force members understand the structure of what it is looking at. The task force needs to understand how the rules will be applied in the future. Marketing comes down to personal relationships and not any one thing leads to marketing. He is concerned that, although the bar needs rules, he does not want the door closed on marketing.

8. Discussed organization of the task force’s charge. Chair Morales proposed dividing the task force members into subcommittees to review each rule then makes recommendations to the full committee. The task force requested that the chair divide the rules and appoint task force members to the subcommittees as he felt appropriate. Chair Morales asked members with a preference to contact him to express that preference as soon as possible. 9. Discussed publicizing the task force’s work through The Florida Bar News. The task force unanimously determined that the task force’s work should be publicized through the News and on the bar’s website. 10. Discussed the possibility of inviting comments on the advertising rules from Florida Bar members, including whether to have live commentary/testimony or written comments only. Task force member Wagner suggested that such a request be targeted to groups who might be interested such as the section chairs, ATLA, Florida Defense Lawyers. The task force directed staff to send a communication to all committee and section chairs, voluntary bars, and other interested groups inviting their comments. 11. Discussed the future meeting schedule. Directed staff to arrange a meeting in May. Task force member Hammond volunteered meeting space in Orlando. Task force member Curtis volunteered meeting space at Nova University in Ft. Lauderdale. Determined that subcommittees would meet via conference call in the interim. 12. Directed staff to obtain prior studies and surveys done on attorney advertising. 13. The meeting was adjourned.

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

May 11, 2004 9:30 a.m. until 4:30 p.m.

The Florida Bar Headquarters Tallahassee, Florida

Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen members attended: Bain Bales Bullard Curtis Ebbets

Hammond Lewis Meador Morales Munoz

Remsen Sellers Wagner Willard

Board of Governors member Michael J. Glazer, and staff members John Anthony Boggs, Mary Ellen Bateman, Elizabeth Clark Tarbert, Kathy J. Bible, Barbara B. Moore and Arne C. Vanstrum also attended the meeting. The committee took the following actions: 1. Heard introductions and opening remarks by chair, Manuel R. Morales, Jr.

2. Approved the minutes of the March 9, 2004 meeting.

3. Heard a report from staff on the letter from Chair Manuel R. Morales, Jr. inviting comments on the charge of the Advertising Task Force 2004 that was sent to The Florida Bar’s standing committees and sections and the voluntary bar associations.

4. Determined, at the suggestion of committee member Wagner, to send requests for comments to other interested groups besides lawyers, such as AARP. Committee member John Remsen volunteered to provide suggestions on appropriate groups.

5. Directed staff to request meeting space at the bar’s General Meeting in September for four hours to accommodate additional comments, if needed.

6. Heard a report from staff on publicizing the work of the Advertising Task Force 2004 through The Florida Bar’s website and The Florida Bar News.

7. Heard remarks by Mr. Michael J. Glazer, Florida Bar Board of Governors member and Designated Reviewer for the Statewide Advertising Grievance Committee. Mr. Glazer commented that he is the Designated Reviewer for the statewide Advertising Grievance Committee. As Designated Reviewer, he reviews actions of that grievance committee, must approve any resolution by settlement, and can reverse any actions they take. Mr. Glazer reported some statistics from the grievance committee and noted that most rule violations they see are minor. The questions that are important to Mr. Glazer in determining whether and what settlement would be appropriate are the attorney’s prior history. He strongly supports use of the

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advertising workshop as a resolution for minor violations. He also strongly supports the requirement for attorneys to obtain prior Florida Bar approval of their advertisements, usually for between 1 and 2 years. Prior review would resolve many problems with attorney advertising. He urged the task force members to consider how the bar would enforce any rules that are recommended, to consider there are tools available for resolution of grievance cases, and to ensure that the process provides sufficient time for review, particularly in light of deadlines for advertisements such as yellow pages. In response to a question from task force member Wagner, Mr. Glazer replied that the violations he has seen are a mix of violations that are clearly expressed in the rules and that are subject to interpretation of other rules.

Task force member Rush entered the meeting.

8. Heard a report from Subcommittee A, Rules 4-7.1 (General) and 4-7.2 (Communications Concerning a Lawyer's Services) by subcommittee chair Basil Bain. Mr. Bain reported that the subcommittee’s approach was to examine each provision of each rule, determine its purpose, determine whether the purpose was legitimate, and determine whether the language of the rule accomplishes the purpose. If the purpose is inappropriate or the language over broad, the subcommittee drafted changes.

In 4-7.1, the subcommittee discussed the possibility of drafting a definition of advertising to define what communications are covered by the rules. A definition might allow simplification of the rules by referring only to “advertising” as opposed to “advertisements and written communications” and the like as currently found in the rules. Staff drafted three alternatives, including various forms of communication in the definitions. The committee determined that it needs to reach consensus on what will be covered by the rules before deciding on a definition of the term “advertising.” Task force member Bales commented that he does not necessarily agree that advertising should be defined; the task force should concentrate on determining what rules should be applicable, then readdress the issue. Task force member Lewis commented that, if everything is determined to be an advertisement, the bar will be swamped with filings and unable to timely review everything. Task force member Remsen commented that the task force should consider the concept of whether or not the advertisement was paid for by the attorney. Task force member Bain commented that it is useful to have a definition of advertising in the rules; there is currently confusion over what is covered by specific rules because of the different terms used to describe different forms of advertising.

In 4-7.1, the subcommittee also discussed and recommends addressing application of the attorney advertising rules to out of state lawyers who advertise in Florida. Staff commented that a similar proposal was made to the court in 1997, but was rejected by the court in its 1999 order on the basis that the conduct should be considered the unlicensed practice of law. Staff further commented that this position seems to create a loophole for out of state attorneys who are authorized to perform some legal services in Florida to avoid compliance with our rules, because they are not engaged in UPL. Staff added that the issue was not extensively briefed to the court, because there was not a lot of opposition to the rule proposal. Task force member Sellers commented that there is no point having a rule that has no enforcement capability. Staff responded that the Supreme Court of Florida has authority to regulate all practice of law in Florida and could enforce such a rule if it chose to. Task force member Munoz suggested that the phrase “involving matters of Florida law” be deleted from the proposed rule, because

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otherwise advertisements might be exempted from the rules that should be covered. The consensus of the task force was to delete that phrase and further discuss the issue of application of the rules to out of state lawyers.

The subcommittee reported that it had discussed and recommends moving the provision that the advertising rules do not apply to communications between attorneys from the comment to the rule, to provide clear guidance to Florida Bar members. Task force members Wagner and Curtis opposed exempting communications between lawyers from the attorney advertising rules, particularly where the communications would be aimed at lawyers as prospective clients, as opposed to referral sources. Task force member Rush spoke in favor of the proposal, commenting that lawyers are sophisticated and the rules were not designed to protect lawyers.

The subcommittee reported that it recommends a structural change to Rule 4-7.2, to organize the rule in three categories: required information, permissible information, and prohibited information or general advertising requirements.

The subcommittee reported that it discussed and recommends expanding the category of permissible content of advertisements to include military service, punctuation marks, common typographical marks and symbols, the American flag, the State of Florida flag, law books, diplomas, commonly used religious symbols, the Statue of Liberty, the American eagle, and a photograph of the attorney in front of a plain background or unadorned set of law books (previously limited to a headshot of the attorney in front of a plain background or unadorned set of law books). Additionally, the subcommittee recommends adding in this section of the rule that in addition to being presumptively permissible, advertisements are exempt from filing if limited to permissible content. Task force member Munoz commented that the issue of filing exemptions should be moved from this rule to the specific rule on filing exemptions. Task force member Wagner suggested that the term “false” should be deleted from the presumption, because if an item of permissible content is outright false, such as including the wrong date of bar admission, the bar member should not be able to avail him or herself of the presumption. The task force consensus was to remove “false” from the presumption. Task force member Wagner expressed concern of permissible content including former positions in the legal field. He has seen attorneys advertise “former prosecutor” or “former judge” and believes the sole purpose of such communications is to imply an improper ability to influence the judicial system. Subcommittee chair Bain responded that such communication provides useful information about the lawyer’s experience and is factually verifiable. Subcommittee member Bales added that terms such as “former prosecutor” are no more misleading than stating that a lawyer has practiced personal injury for 20 years, because they merely state the lawyer’s legal experience. The task force determined to resume discussion of this item.

The subcommittee reported that it recommends deletion of the term “unfair” from prohibited content of advertisements wherever it appears throughout the rules, because the term is unclear. Everything that should be prohibited is already covered by the terms “false, misleading or deceptive,” and the term “unfair” could be used to indicate that one attorney has an unfair advantage over others because of budget or other competitive issues that the rules should not be used to addressed. The consensus of the committee was to delete the term “unfair” everywhere it appears, in Rule 4-7.2(b)(1), 4-7.2(b)(2)(E), 4-7.2 Comment (paragraph 1), and 4-7.4(b)(1)(E). The consensus of the committee was to delete the term “unfair” from the rules.

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Regarding subdivision 4-7.2(a)(2), the subcommittee reported that it discussed and recommends deleting the language “If an advertisement or written communication lists a telephone number in connection with a specified geographic area other than an area containing a bona fide office, appropriate qualifying language must appear in the advertisement.” Staff commented that this rule provision was added in 1999 because the Standing Committee on Advertising interpreted the attorney advertising rules as prohibiting advertising local numbers where the attorney did not have an office location without qualifying language such as “in [city], call ____” to indicate that the attorney did not have an office location there. The committee interpreted advertising such “drop lines” without indicating the lack of a bona fide office in the location as misleading. Task Force member Ebbets commented that such communications are misleading, and could still be prohibited under other provisions of the rule. Subcommittee member Bales responded that the subcommittee does not believe the information to be misleading. Task force member Rush commented that one purpose of the rules is to protect the image of the legal profession. Such communications negatively impact public perception and lead the public to believe that lawyers are misleading the public; the rule puts no real burden on attorneys and should be retained. Staff commented that the task force must decide whether or not the conduct is considered misleading, because if the language is removed from the rule, attorneys will interpret that action to indicate that the conduct is permissible. Subcommittee member Bales suggested that the task force consider deleting the geographic disclosure requirement. The consensus of the committee was not to delete the geographic disclosure requirement, but discuss the issue of deleting the specific language further.

Subcommittee chair Bain reported that the subcommittee discussed and recommends deleting Rule 4-7.2(b)(5) prohibiting advertising areas of practice the attorney does not currently practice. The rationale behind the rule was aimed at brokering cases, but the regulation is over broad and not evident from the language of the rule itself.

Subcommittee chair Bain reported that the subcommittee recommends deleting Rule 4-7.2(c)(8) requiring that attorneys disclose in advertisements whether they intend to refer the matter to another attorney. The subcommittee members believe that the referring attorney is obligated to be jointly responsible for a case if dividing the fee with another lawyer, and is therefore providing an actual legal service to the client. The rule therefore is over broad and does not serve the public interest. Task force member Munoz spoke against the recommendation, stating that it is inherently misleading not to disclose the intent to refer a matter to another attorney if that is the lawyer’s intent at the time the advertisement is run. Subcommittee member Bales responded that law firms frequently give cases to associates to handle, although the associates are not the lawyers mentioned in the firm’s advertisement. Subcommittee member Morales commented that lawyers may not know whether or not they will refer particular cases until they interview the prospective clients. Task force member Rush commented that the rule was aimed at the conduct of an attorney advertising for cases that they know they will refer out, for example, referring out all personal injury cases.

Task force member Wagner suggested, referring back to 4-7.2(b)(5), that the rule instead be changed to a prohibition against advertising for areas in which the lawyer is not currently competent to practice. Task force member Rush responded that the rule is designed not at lawyers who are not competent in a particular area, but at lawyers who choose not to practice in

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a particular area, but advertise the area; clients get talked into hiring the lawyer, then get referred to someone else.

Subcommittee member Morales commented that the task force should consider, as an example, attorneys who handle personal injury cases except for litigation. The attorney will be able to handle most personal injury cases to completion, but will have to involve a litigator for those cases that do not settle. Attorneys should be encouraged to involve someone competent if the attorney is not. Subcommittee member Lewis added that if a division of fees is involved, the attorney is still liable and is still practicing personal injury law. Task force member Rush responded that the rule is not aimed at lawyers who only refer out some cases; the distinction is that the lawyer knows that the lawyer will not handle all personal injury cases, for example. Subcommittee member Morales asked how the rules can enforce the attorney’s intent. Task force member Meador commented that the purpose of the rule is protect the public, so that the prospective clients know what they are getting into and whether or not the advertising lawyer will actually handle their case. Task force member Wagner commented that, by not disclosing the intent to refer, attorneys take away a prospective client’s bargaining power. The case has less value if the lawyer the case is referred to knows that the lawyer will have to pay a referral fee, which limits the client’s choice of lawyers who will take their case.

9. Heard a report from Subcommittee B, Rules 4-7.3 (Print Media), 4-7.4 (Solicitation and Direct Mail), and 4-7.10 (Firm Names & Letterhead), by subcommittee chair Chobee Ebbets.

Subcommittee chair Ebbets reported that the subcommittee completed a preliminary review of the rules assigned and began drafting rule changes. The first recommendation of the subcommittee is to eliminate the requirement of the hiring disclosure in print advertisements. Although the requirement was originally intended as a warning to consumers to obtain more information about attorneys before hiring, the disclosure does not appear to be making a difference and does not cause anyone to request more information who would not already be requesting additional information. Task force member Munoz commented that task force member Bogan noted at the first meeting that a family member had selected an attorney from a yellow pages advertisement; perhaps there is a large segment of the public that hires an attorney without doing any investigation. However, task force member Munoz does not feel strongly about eliminating the hiring disclosure, because he is unsure whether any member of the public reads it. Task force member Bain commented that, although he does not feel strongly about eliminating the hiring disclosure, the disclosure provides a positive message to the public that they should ask for additional information from attorneys before making a decision to hire an attorney. Subcommittee chair Ebbets responded that the original advertising commission tried to include every possible protection; this particular protection is not effective in actual practice. Task force member Curtis raised a concern regarding the elderly, many of whom for cultural reasons do not understand that they have a right to question someone’s qualifications.

Subcommittee chair Ebbets suggested that the task force consider asking a group such as the Citizen’s Forum whether the disclosure is useful. Task force members Lewis and Bales commented that consumer groups will always agree that a disclaimer is useful, but that does not mean that members of the public will actually read a disclaimer or find it useful. Task force member Hammond commented that there are members of the public who will never ask for information about qualifications and the disclosure statement will not make someone who does

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not already have the propensity to ask questions to start asking for additional information. Task force member Bain asked whether the public now expects to see the hiring disclosure and if its absence will have a negative effect. Assistant Ethics Counsel Barbara B. Moore noted that one of the goals of the subcommittee was to make the rules as uniform as possible; most forms of advertisements are not required to contain the hiring disclosure, such as television, radio, and direct mail.

Subcommittee chair Ebbets reported that the subcommittee recommends changing “prior professional relationship” to “prior attorney-client relationship” in Rule 4-7.4(a). Task force member Munoz spoke against this proposal, stating that there are a number of relationships that should fall within the umbrella of persons who may be directly solicited, such as persons an attorney has worked with at a corporate client, although the person is not a client, or persons the attorney has worked with on charitable boards and the like. Making this change could have a backlash. Task force member Lewis agreed, stating the change is too restrictive.

Task force member Wagner suggested that the Rule 4-7.4(b) be amended to clarify that the rule was intended to apply only to communications not requested by the prospective client, perhaps in the title. The task force directed staff to draft such language.

Subcommittee chair Ebbets reported that the subcommittee recommended adding criminal cases to the 30 day rule in 4-7.4(b)(1)(A). The subcommittee discussed the issue of urgency in the timetable of criminal law, but decided in balance that the same rationale applies to criminal law as personal injury. Subcommittee member Sellers commented that he was unable to attend the subcommittee meeting, but strongly objects to adding criminal law to the 30 day prohibition on direct mail. The rule will not serve criminal defendants, most of whom do not know who to contact for assistance with criminal law matters. The time limits in criminal law justifies the distinction between criminal law and personal injury. If a person is arrested and bonds out, they are usually given a court date 2-3 weeks away. Many people will end up going to court without representation and may unknowingly waive important rights, because neither the court nor prosecutors explain their rights to them. One of the most critical periods of time in criminal matters is before the initial court date. Task force member Rush commented that in his circuit, the public defender is appointed at first appearance, so the person is represented. If the task force reviews the comment to the rule, the rationale is to curb abuses and coercion of persons in a particularly sensitive state. That same rationale applies equally to criminal matters; criminal defendants are in as high a state of distress as a person can be in. The same argument about the critical time period can be made in personal injury; within that time period, the injured person can be persuaded to settle by an adjuster. Task force chair Morales commented that requiring a 30 day waiting period in criminal cases may actually prevent criminal lawyers from obtaining clients at all because the initial time period in criminal cases is so critical, whereas in personal injury cases, 30 days is fairly insignificant compared to the lifetime of a case. Task force member Wagner commented that the decision cannot be made on the basis that it hurts people who need a lawyer; it appears to really be a matter of taste.

Task force member Wagner commented that he does not understand Rule 4-7.4(b)(2)(F) that does not allow an attorney to send a contract unless it is marked “SAMPLE” and “DO NOT SIGN.” Task force member Bain commented that the prohibition is useful, because it prevents a

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member of the public from entering into a contract with an attorney on the basis of a first, unsolicited contact from an attorney.

Task force member Wagner commented that Rule 4-7.4(b)(2)(I), requiring an attorney who signs the letter to disclose that another attorney will actually handle the matter, is particularly valuable to the client.

Subcommittee chair Ebbets reported that the subcommittee recommended no changes to Rule 4-7.10.

10. Heard a report from Subcommittee C, Rules 4-7.5 (T.V. and Radio) , 4-7.6 (Computer-accessed) & 4-7.11 (Lawyer Referral Services), by subcommittee chair Shane Munoz.

Subcommittee chair Munoz reported that the subcommittee worked on the general premise of protection of consumer, preserving the profession, balanced with the interests of attorneys in competing in the marketplace. The subcommittee’s consensus was to simplify rules and try to make the rules as uniformly applied to all media rather than having special rules for each media to the extent possible.

The subcommittee consensus as to Rule 4-7.5 was that the subcommittee agreed with the proposed changes currently pending before the Supreme Court of Florida.

Subcommittee chair Munoz reported that the subcommittee discussed whether the proposed prohibition against all background sound other than instrumental music might be overly broad issue, but determined that the rule had the benefit of being clear and easy to interpret. The subcommittee also determined that nonlawyers should be permitted to be spokespersons for a law firm, although the use of celebrities should be prohibited. Task Force member Wagner asked what is the theory of prohibiting celebrity spokespeople, and what is the subcommittee’s goal in proposing that prohibition? Subcommittee chair Munoz responded that the subcommittee’s concern was the unfair advantage if a recognizable celebrity lends their own credibility to the attorney. Task force member Rush spoke against allowing the use of nonlawyer spokespersons at all. Subcommittee chair Munoz responded that the subcommittee felt that spokespersons should be allowed, for example, to use a fluent foreign language speaker in an advertisement. Task Force member Lewis commented that the task force would not be helping the public by allowing nonattorney spokespersons that could give the implication that attorneys also speak foreign languages.

At task force member Wagner’s suggestion, the task force discussed whether to request that the Supreme Court not to rule on pending rules changes affecting the advertising rules until the task force makes recommendations. Task Force member Bales commented that the task force should not ask the Supreme Court to wait on changing the rules. He believes that the legislature’s aim in addressing attorney advertising in legislation is to go after The Florida Bar, not to change the rules per se. Politicians will take as a message that The Florida Bar is caving. The task force should do what the members think is correct, not what would make the legislature happy.

Task Force member Bain commented that he agrees there should be limitations on the use of a spokesperson because there is a tendency of the public to make decisions on the basis of a

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celebrity lending credibility. Use of such a spokesperson has the potential to manipulate or mislead the public.

Subcommittee chair Munoz commented the subcommittee agreed to incorporate 4-7.2 by reference in Rule 4-7.5.

Subcommittee chair Munoz stated that there was no one on the subcommittee with special knowledge of technology, regarding Rule 4-7.6. The subcommittee discussed concerns that technology changes so quickly and is difficult to anticipate. The subcommittee reached a consensus that most issues raised by computer communications may be handled with reference to other rules: e-mail sent on an unsolicited basis should be treated as direct mail. Pop-up and banner, on the other hand, should be guided by reference to print ads. The subcommittee discussed concerns regarding, for example, pop ups that are driven by knowledge regarding the consumer and whether such issues should be treated with special rules. On the other hand, is there any difference than placing a print ad in a specialty magazine? The subcommittee discussed opt-out provisions for members of the public that do not want to receive Internet “spam,” but the subcommittee did not research the cost of such provisions. The subcommittee discussed how direct mail rules translate to the Internet; for example, use of an “Urgent” type indication on e-mail should be prohibited in the same way that direct mail cannot be sent by federal express or certified mail. There should also be rule provisions that indicate direct e-mail cannot be made to resemble pleading, particularly now that courts are accepting electronic filings. Chat rooms would be considered direct, in-person solicitation, and the same analysis applies to any real time conversations on-line.

Task Force member Wagner commented that he does not think there should be an exemption for what is currently termed “information on request” for websites or homepages sponsored by a law firm - such distinctions are with today’s technology. The task force should not treat computer-accessed information in a different way than general advertising regulation.

Task Force member Bain commented that it makes sense to try to apply the same principals to Internet as other areas of the rules.

Task Force member Lewis commented that staff indicated under the current advertising rules that websites are no different than if someone calls a lawyer and asks for information, such as a brochure, to be sent. Task Force member Wagner responded that they are both advertisements. Subcommittee chair Munoz commented that no one is saying that they are not both subject to some regulation, it is a question of what regulation should be applied; the subcommittee consensus was that information on request was the closest analogy.

Task Force chair Morales asked if there is anything that can be done on computer that cannot be analogized to another form of advertising. Subcommittee chair Munoz responded that only the distinction is that, in searching the Internet for information on general legal issues, a lawyer’s website may come up as a response to a search, even though the person is not necessarily looking for an attorney. Task Force member Wagner commented that if a person searches using any pharmaceutical company name, the person will get 3 or 4 lawyer websites as a response to the search. Task Force member Bullard commented that computer users are more sophisticated than other members of the public.

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Task Force chair Morales commented the task force needs to decide what kind of computer activities need to be regulated. Subcommittee chair Munoz commented that one other issue discussed by the subcommittee was the use of what is referred to as “spy ware” that can be used to spy on consumers and report back there on-line activities and transactions.

Task Force member Wagner raised the issue of lawyers paying extra to be listed first in searches on certain key words.

Task Force member Rush commented that the task force should wait and gather more information before crafting a rule.

Subcommittee member Ebbets commented that committee member Ebsary has special knowledge on technology.

Subcommittee chair Munoz reported that, regarding Rule 4-7.11, the subcommittee consensus was that lawyer referral service needs to be defined more clearly, but that there is disagreement whether the current rule is over broad. Some members of the subcommittee felt that entities with a broader purpose, such as education of the public, should not be covered by the rule.

Task Force member Remsen re-entered meeting.

Subcommittee member Hammond commented that he agrees that regulation of lawyer referral services is proper and appropriate in that it regulates those with the purpose and business of referring business to attorneys. However, he defines that as situations with a direct quid pro quo, with attorneys putting money in with the expectation of getting business back. The situation he has been in regarding The Fund’s educational campaign is not a quid pro quo. The Fund is a title insurance company with attorney agents; in the area of title insurance, nonattorneys have been competing with attorneys for 30 to 40 years. Nonattorneys advertise that members of the public do not need or want an attorney involved in their real estate transactions. The Fund has an educational campaign on the real estate process that informs consumers that they should consider having a real estate attorney. One page on The Fund’s website is listing of The Fund members that do heavy real estate practice. There is no quid pro quo, and neither The Fund nor The Fund’s members who are listed know if any referrals result from the public calling The Fund or visiting its website. The Fund’s educational campaign should not be subject to bar regulation. To comply with The Florida Bar Board of Governors’ finding that The Fund’s educational campaign constitutes a lawyer referral service, The Fund removed the lawyer listings from the website.

Task Force member Rush commented that the other alternative for The Fund was to comply with the attorney advertising rules, including Rule 4-7.11. The only part of the rule that seems burdensome is the quarterly reporting to the bar.

Task Force chair Morales asked whether attorneys joining The Fund ask if the Fund complies with the requirements for a lawyer referral service. Task force member Hammond replied that they do not, because they are joining to become title insurance agents, not to get referrals.

Task Force member Bain asked the purpose of the quarterly report. Legal Division Director Boggs responded that the quarterly reporting allows the bar to identify members of the bar

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participating in the lawyer referral service and allows the bar to warn the attorneys regarding following the advertising rules.

Subcommittee chair Munoz commented that the broader purpose behind Rule 4-7.11 is to prevent attorneys from avoiding application of the attorney advertising rules and prevents lawyers from doing indirectly what they are directly prohibited from doing. It prevents the uneven playing field. Subcommittee member Hammond responded that he does not question that the bar needs a rule, he just disagrees with the breadth of the existing rule. Legal Division Director Boggs commented that the rule originally was adopted to apply only to referrals with direct quid pro quo payments. The group or pooled advertising program definition was added to address the issue of groups of attorneys who got together to run advertisements where referrals were made only to that group, thereby circumventing the attorney advertising rules.

Task Force chair Morales commented that the task force needs to decide whether the task force wants to distinguish what The Fund does as opposed to a for profit lawyer referral service or group wanting to circumvent the advertising rules; another example is local bar associations that may be caught be the rules unintentionally. Task Force member Rush responded that he does not see a problem with requiring The Fund to follow the attorney advertising rules. Task Force member Bain commented that he agreed with the purpose, that if an attorney advertises, the attorney must follow the advertising rules. He questioned the purpose for the additional requirements for lawyer referral services, such as the requirement for $100,000 in malpractice insurance. Legal Division Director Boggs responded that the malpractice limit was adopted to conform to Chapter 8 of the Rules Regulating The Florida Bar, which sets forth requirements for Florida Bar sponsored lawyer referral services.

Task Force member Wagner commented if the provision was designed to protect the public, a better regulation would be to require that all attorneys who advertise carry malpractice insurance.

11. Heard a report from Subcommittee D, Rules 4-7.7 (Filing requirement), 4-7.8 (Exemptions from Filing) & 4-7.9 (Info on Request) by subcommittee chair Robert Rush.

Subcommittee chair Rush reported that the subcommittee recommends that Rule 4-7.7, the filing requirement, be amended to require review of advertisements prior to their dissemination. The subcommittee recommends changing the review period to 30 days to allow staff sufficient time to review advertisements, because the subcommittee also recommends expanding the filing requirement to cover some advertisements that were previously exempt from filing. The subcommittee also recommends adding subdivision (b) (3), requiring an English translation if the advertisement is filed in another language. The subcommittee also recommends adding subdivision (d), which clarifies that The Florida Bar is not responsible for checking the accuracy of factual statements made by the attorney and any inaccurate factual statements will subject the attorney to possible discipline.

Subcommittee chair Morales commented that the task force should consider on line 1801, information substituting “information that is required and permissible content of advertisements” instead of the current language.

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Task Force member Munoz commented that the preliminary issue to be discussed is whether to recommend prior review of advertisements. In his opinion, the U.S. Supreme Court has shown concerns regarding prior restraint, so not only are there practical issues of how to manage prior review, but the concern that The Florida Bar may be sued.

Task Force member Bales agreed that the task force needs to discuss the real constitutional issue involved, particularly since Subcommittee D is recommending that only communications to current clients be exempt from filing.

Subcommittee chair Rush commented regarding the prior restraint issue, the U.S. Supreme Court did uphold the 30 day restriction on direct mail in personal injury cases as a reasonable regulating measure. Task Force member Bales responded that the real issue in the 30 day ban was that it was a targeted direct mail that invaded the privacy of citizens.

Task Force member Munoz suggested that, if the concern is failure to comply with the advertising rules, the issue could be addressed with stricter sanctions. Task force chair Morales asked whether stricter sanctions would be worse for attorneys than prior review.

Task force chair Morales stated that the task force needs to decide whether or not to consider prior review, then work with staff and outside counsel Barry Richard on the constitutional issues. Task Force member Bales commented that this task force must address the constitutional issues.

Task Force member Bales commented that he opposes a filing requirement for communications to former clients other lawyers. Subcommittee member Morales suggested that the task force consider requiring filing of all television and radio advertisements only. Subcommittee chair Rush commented that every noncomplying ad hurts all attorneys; he sees problems with the yellow pages, because each yellow pages ad runs for 1 year. Prior review of all ads would prevent the running of ads before The Florida Bar even has chance to look at them.

Task Force member Bain commented that if the goal is to address a few bad apples, sanctions are more effective than prior review.

Subcommittee member Morales commented that sanctions are minimal and have no impact; the way to ensure the advertising rules are complied with is prior approval. The task force needs to consider the mission it trying to accomplish, which is regulatory compliance and whether the burden of waiting for 30 days or less to run an advertisement is so great. Task Force member Munoz commented that the bar is still early in the process of having a separate statewide advertising grievance committee. One sanction is fee disgorgement. The task force should consider waiting to see if there are additional sanctions being imposed with the new grievance committee and whether or not there is any effect on compliance. He added that the U.S. Supreme Court has said that any prior restraint is burdensome.

Task Force member Munoz commented in the draft changes to Rule 4-7.7(g), lines 1052-1058, whether the task force should add as an alternative that attorneys can pull the noncomplying advertisement.

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Subcommittee member Morales suggested striking that failure to comply with the contents of a filing is “grounds for discipline on lines 1015 and 1028; it should just be grounds for a notice of noncompliance.

Subcommittee chair Rush reported that the subcommittee discussed requiring filing of public service announcements. Subcommittee member Remsen commented that lots of attorneys run PSA’s and they do not comply with the attorney advertising rules. Subcommittee member Wagner commented that he is not sure how to define PSA; although the task force does not want to cut off PSA sponsorships, he proposes that PSA’s be permissible, but required to be filed at the time they are used for no fee. Under that proposal, the bar could look at the PSA to determine if it, in fact, meets the definition of a PSA or if it is really more of an attorney advertisement. Task Force member Munoz commented that in the SCA’s experience with the rule, the factors could be clarified to. Subcommittee member Remsen suggested that the task force consider adopting a rule that PSA may include any exempt information plus the fact of sponsorship.

Subcommittee member Wagner commented that he is opposed to the filing exemption for communications with former clients being exempt; lawyers should not be able to solicit former clients either. Task Force member Munoz commented that a former client is not a stranger to the lawyer anymore; additionally, it raises the question of when clients become former clients. Subcommittee member Wagner responded that it is inconsistent to treat former clients differently than other members of the public once they become former clients. Subcommittee chair Rush commented it is only inconsistent if they are viewed as the same in kind. The consensus of the subcommittee was to include communications to former clients and other lawyers in communications exempt from filing under 4-7.8(d), line 1110.

The task force discussed the provision proposed by Subcommittee D to require that written communications requested by a prospective client be filed if the request was solicited by an attorney advertisement. The task force consensus was to strike “when the request is not solicited by an advertisement published by or on behalf of the lawyer” in Rule 4-7.8(e), 1115-1116.

Task Force member Meador asked why information on request is treated differently than other forms of advertising.

The task force agreed to review further the issue of what forms of advertisements must be filed for review.

Subcommittee member Morales suggested that, because the task force seems to be moving towards treating information on request more like other forms of advertising, the task force consider deleting Rule 4-7.9 altogether. Subcommittee chair Rush suggested the task force consider keeping subsection (a), requiring information on request to comply with Rule 4-7.2, new subsection (c), requiring attorneys to provide proof of statements upon request, and new subsection (d), requiring attorneys to provide a disclosure of whether they intend to refer a matter to another lawyer. Subcommittee member Wagner commented that there deserves to be at least some mention that if someone requests information, the attorney cannot give false, misleading, or deceptive information. Task Force member Bain commented that there is some value to having a rule that says information on request must comply with Rule 4-7.2. The task force

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consensus was to direct staff to draft changes that would move subsection (c) to Rule 4-7.2 and to strike subsection (d), while further discussing leaving subdivision (a).

12. The meeting was adjourned.

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

June 24, 2004 10:00 a.m. until noon

Boca Raton Resort & Club Boca Raton

Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen members attended: Bain Bales Bogan Curtis Henry

Leopold Lewis Morales Munoz

O’Keefe Remsen Rush Wagner

Guests Judge Ralph Artigliere, Alan Becker, Frank Benasutti, Jeffery Cohen, Henry M. Coxe, Jason Diamond, Charles Douglas, Norwood Gay, Stuart Grossman, William Harrell, President-elect Kelly Overstreet Johnson, Lynda Keever, Mark Milrot, Chris Mobley, Carl Patterson, Representative David L. Simmons, Wayne Thomas attended the meeting. Staff members John Anthony Boggs, Elizabeth Clark Tarbert, Ken Marvin, Gail Ferguson, and Dawna Bicknell also attended the meeting. The committee took the following actions: 1. Approved the minutes of the May 11, 2004 meeting. Approved a change to the March 2004 minutes as in the committee’s agenda in legislative format.

2. Heard comments from bar members and interested persons:

Representative David L. Simmons stated that he was elected to the legislature in 2000. He has seen in his experience that attorneys have no place in society. The general view as reflected by his compatriots is if the legislature can get lawyers out of any particular business, transaction or type of litigation, that will be better for society, it will be simpler and it will cost less. He has seen this in the efforts to create constitutional amendments to limit attorneys fees. Many people have come to him and said the only solution to medical malpractice litigation is to cap payments based on particular injuries and remove attorneys from the system. There is a similar issue with PIP, where there is a set fee for types of visit and a limit on the number of visits. Workers’ compensation legislation was just passed with a $1500 cap on attorneys fees. Next will be personal injury in general, where people have suggested to me setting up a workers’ compensation type system and reducing rights of victims. From the inside looking out, in 5, 10 or15 years, unless something is done with respect to the way attorneys present themselves to the public, the practice of law is going to be dramatically different than the way it is today. The task force has a significant responsibility, because attorney advertising is one of the prime reasons there is such disdain for the legal profession. Spending Florida Bar dues on running advertising to get the public to believe that lawyers are good people is a waste of money, because until advertising by lawyers in Florida is cleaned up, the disdain and dislike people have for lawyers and the legal system will not change. Representative Simmons sponsored House Bill 1357 to

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regulate attorney advertising that passed the house this session and would have passed the Senate. He hopes that was a shot over the bow. He has checked the constitutionality of regulation by the legislature, and regulation of attorney advertising is not the exclusive province of The Florida Bar or the Supreme Court of Florida. It is the bar’s responsibility to regulate attorney advertising, and if the bar and supreme court will not, the legislature will. Your responsibility and if you don’t legislature will. There are members of the legislature who would go much further than House Bill 1357. He has been told that the Board of Governors passed a resolution that The Florida Bar is in favor of regulating attorney advertising to the fullest extent constitutionally permissible. There is an alternative to restricting advertising and that is requiring disclosures. For example, in advertising for personal injury matters, an attorney could be required to disclose that the client may be exposed to fees and costs if they lose. The task force should look at what kind of disclosures can be required so there is not deceptive advertising. Zauderer addressed that issue and said that disclosures may be required.

Mr. William Harrell stated that he is a Board Certified Civil Trial Lawyer rated AV and President of the First Amendment Society, which is an organization including 87 law firms, most of which advertise. Members are advertising law firms and member of the media community. He provided a bound copy of a summary of all law pertaining to the issue of attorney advertising since Bates. Everything Representative Simmons said was incorrect. Representative Simmons says studies show advertising attorneys are held in contempt. This is not true. ABA studies show that advertising lawyers are accepted. Only 1 study shows advertising lawyers are not accepted by the public. The public accepts advertising by lawyers, but lawyer advertising is not accepted by lawyers. When Mr. Harrell was not a personal injury lawyer, he opposed advertising. While on sabbatical, he taught constitutional law. He has found that the principal beneficiaries of attorney ads are lower, socio-economic classes and minorities who don’t have access to attorneys. The marketplace will take care of the 1-800 pitbulls - they demean the professional and will get squeezed out. That kind of advertising abuse is a very small minority. The Florida Bar and Kentucky are the 2 most restrictive states. 40 states have no restrictions. Kentucky has prior restraint and is abandoning that position because it is legally insupportable. When Kentucky withdraws that restraint, Florida will be the most restrictive state. There are things that can be done to correct some of the bad advertising that is taking place, short of taking a hammer and approving prior restraint. The task force members should read the materials provided. Much of The Florida Bar regulations cannot withstand constitutional scrutiny. The First Amendment Society is happy with the existing bar regulations. They are reasonable restrictions that still allow effective advertising. Don’t adopt Representative Simmons’ view that more is better.

Mr. Wayne Thomas is Vice-chair of the Unlicensed Practice of Law Standing Committee. He wants to raise a couple of issues that are micro issues rather than macro. The UPL Standing Committee would like to see the task force adopt a rule that requires lawyer referral services to identify themselves as lawyer referral services in all advertising. For example, there is a lawyer referral service called “Total Help” that does not say it is a lawyer referral service. People seeing the advertising think it is a law firm. That lawyer referral service is also in violation of existing bar rules because the ad appears in Portuguese, but the disclaimer language is in English. The task force needs to go that further step and also require lawyer referral services to affirmatively state they are lawyer referral services in all ads. The second issue has not been voted on by the UPL Standing Committee, but is an issue Mr. Thomas has noted. He is concerned about

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nonlawyer organizations that solicit business in ways attorneys cannot, then refer the matters to attorneys. The attorney is getting business from a nonattorney who advertises in a way that attorneys cannot. For example, there is a former stock broker that goes out and gets clients, sees if they have a case, works up the file, then refers it out to an attorney. We believe the stock broker is engaging in UPL and is advertising in an unethical way. This conduct is implicitly prohibited by the rules, but he would like to see it explicitly prohibited by adoption of a rule prohibiting attorneys from accepting referrals from a source of advertising that attorneys cannot engage in.

Mr. Stuart Grossman stated that he served on the board for many years, and has been named trial lawyer of the year. He disdains advertising and spoke out against advertising during his 6 terms on the Florida Bar Board of Governors. He believes advertising demeans the profession and diminishes the services that lawyers provide. Advertising blurs the distinction between image and reputation. An advertising lawyer thinks he can buy time, buy talent, appear to have resources and experience, and look like a wining lawyer, none of which is true. If Mr. Grossman advertised, he would like to talk about results, which is prohibited. There is nothing else the public really wants to know, but a lawyers record of verdicts and settlements. He has practiced for 31 years and has no knowledge of most of the lawyers who advertise. The whole thing is upside down, and the worst thing is the most important information the public would want to know is withheld - the comparison of verdicts, trials and settlements. The bar’s dilemma is how to legitimize the right of the public to know about lawyers, but for lawyers to tell the truth. Advertising now is misleading: it is whatever the advertising lawyer wants it to be. A lawyer’s flaws do not appear on T.V. and the line between reputation and image is totally blurred. He resents the implication that minorities do not have access to law firms. The contingent fee is every person’s opportunity to have the best attorney available at the same rate as any other attorney. Minority clients are not struggling to find a law firm, and that issue is a red herring. It is sad that we take things called the first amendment and we take things called minority appeals and we wrap that around some of the smarmiest things on television. He has a friend who is a screenwriter in L.A. who says that lawyer advertising is an old issue - the sky is not going to fall. Mr. Grossman thinks that every day it rains a little bit more on the legal profession. It is the difference between image and reputation, and the lawyers who make images into reputations are hurting the rest of the profession. If the advertising task force can somehow make the truth come out in advertising, then they would accomplish something.

The Honorable Ralph Artigliere spoke on behalf of the Board of Legal Specialization and Education, who also has a micro issue to raise before the task force. Under the current rules, only board certified attorneys can state that they are specialists or experts. He received a letter from a board certified lawyer who is concerned that lawyers who are not board certified are advertising that their practice is “limited to” an area. That member believes that stating “practice limited to” is no different than claiming specialization. It is confusing to the public for lawyers to state that their practice is “limited to” an area. The fact is, when viewed from the public’s perspective, the public will never be able to tell the difference between a board certified lawyer and one who says they limit their practice to a certain area. It is misleading and could send the public to the wrong lawyers. Another potential issue is lawyers who indicate they limit their practice to “advanced estate planning” and similar titles. This area may be something the lawyer has no ability to do. Board certified lawyers must have a certain level of experience and are tested. A person who says that their practice is “limited to trial” may have no trial experience.

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It lets someone accomplish through advertising what board certified lawyers have worked hard to achieve. The purpose of board certification is to benefit the public by identifying attorneys with special abilities and qualifications. Board certification is also a trademark that must be protected, and this type of advertising waters down that trademark. He urged task force members to read the BLSE’s letter in their materials and thanked them for their consideration.

Mr. Jeffrey Cohen, current chair of the BLSE, stated that he practices in complex commercial litigation, which makes him sound like an expert. He is an expert, because he has done what is required to hold himself out to the public as an expert. The rules say that only board certified lawyers can use language that connotes special expertise. There is no problem advertising that the lawyer practices personal injury, for example. It is the modifier of “limited to” that is pregnant with the peril of misleading the public and flies in the face of what the rules were designed to do.

Mr. Frank Benasutti stated that for the last 38 years, his avocation has been ethics and professional responsibility. He chaired the Pennsylvania Bar’s professionalism committee and was a special assistant to the Pennsylvania Supreme Court in adopting the professionalism code. He has been recognized as an expert in the field of ethics. His overall view of the code is that it is not about professionalism. The code says an attorney shall, must or should, then everything after “except” is about business, not ethics. Each state makes a laundry list of exceptions. The task force should adopt the Supreme Court’s definitions from Zauderer, in which Mr. Benasutti appeared as an expert witness, and his position was adopted by the Supreme Court in that case. If the task force is interested in learning how the public obtains information, people do not read anymore, they watch television.

Chair Manuel R. Morales welcomed President-elect Kelly Overstreet Johnson and Florida Bar Board of Governors member Henry M. Coxe to the meeting.

Regarding the issue of referral fees, attorneys were surveyed to see if they engaged in referral fees. After the survey, the supreme court changed the rules to allow referral fees. The public ought to know everything about attorneys. The supreme court changed the rule on referral fees to make sure the public gets to the right attorney. If referral fees were not allowed, the temptation is for attorneys to keep the cases for themselves, even when they are incompetent to handle those cases. There is something wrong with rules that do not allow attorneys to give truthful information to the public so that members of the public can make well-informed decisions about the selection of an attorney. He does not like the safe harbor limitations, or the fact that the rules can be changed so easily and often. He suggested that the task force take surveys on what information is going to the public and base their decisions on what should be restricted from what is actually being conveyed. If something is not dignified, the public is aware of it. It is not the standard of the task force or of lawyers that counts, it is the standard of the public. The Zauderer standard is that lawyers not be sanctioned for printed advertisements containing truthful and non-misleading information and legal advice. The burden on the task force is if the information is false, misleading or harmful, the regulation is necessary.

Ms. Lynda Keever, publisher of Florida Trend magazine, stated that she was the first person to speak who is not an attorney. She speaks as a publisher who accepts legal advertising in her magazine. She applauds the task force as a group for convening and re-examining the attorney

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advertising rules. She has been a publisher for 13 years, and her experiences as a publisher of legal advertising are both exciting and frustrating. Most of her experience is with large firms with marketing directors, public relations firms and consultants. Most recently, her magazine published the Florida Legal Elite. The magazine reached out to smaller firms with small to no advertising budget and asked where they considered the best place to put their money. It gave her insight into the challenges these firms have. Some managing partners told her that they draw straws among the partners to decide who has to handle advertising. The rules are so onerous that lawyers do not want to deal with advertising. In research of advertising by professionals such as attorneys, engineers, and accountants, it is rare for clients to make a decision solely based on advertising, such as calling and saying I am hiring you because I saw your ad in Florida Trend. But people do say “I saw your firm in Florida Trend.” There is a mix of how attorneys are selected, through advertising, research, advice from friends and other sources. If the bar’s goal is to stop small and medium sized firms from advertising, the bar has met that goal. The hassle factor is overwhelming to these attorneys. The rules are too complex, attorneys do not have time to review them and do not have staff that understand the nuances of the rules. Some attorneys would rather not advertise than submit an ad for review and have it rejected, because they feel they will look unprofessional if others find out. Preparing an ad is expensive for law firms, particularly if the ad is rejected and has to be re-produced. The rules are open to interpretation and, she has been told, open to interpretation based on which staff attorney reviews the ad. She asked for a list of magic bad words and was told there was no such thing. Her magazine contracts with attorneys state that the attorney must comply with Florida bar rules. Her staff thought the attorneys would know the rules, but half the attorneys in Legal Elite did not know their ads had to be submitted to the bar for approval. One ad was even approved by the bar without having the hiring disclosure. She as a publisher cares about the bar rules and does not want to allow an attorney advertising in her magazine to violate the rules if they are easy to follow. The Florida Bar attorney advertising rules put Florida law firms at a competitive disadvantage, because national firms in the national media do not have to comply with Florida’s rules. She also encouraged the task force to be sensitive to deadlines imposed by the media, especially if they recommend prior approval. It takes a certain amount of time not only to obtain bar approval, but to produce an ad. Bar members and publishers need a set of quick guidelines and do’s and don’ts.

Mr. Carl Patterson stated that he was on the Standing Committee on Advertising for seven years, including chairing the committee for two years, was the first public member of a bar committee to become chair of the committee, and currently serves on the statewide Advertising Grievance Committee. He stated that Florida Bar staff is excellent, and the current rules are clear and not new. Any set of rules can have minor changes made. The problem that he sees from his bar service is dumb, lazy attorneys who fail to properly prepare their ads, fail to read the rules, and choose to listen to yellow pages sales representatives and others who do not know the rules. He has continuously seen false, misleading statements made in ads, for example, failure to state that an associate is not a member of the bar. Initially, the committee saw large firms, but now mostly are seeing small firms. Some attorneys are new, some have 20 years experience. He wonders, as a layperson, how those lawyers ever win a case in court. The statewide Advertising Grievance Committee has been good at providing consistency with discipline. He would like to see harsher penalties for violators, such as banning them from advertising for a set period of time if they have more than two violations in a five year period. He is unsure whether the court would adopt such a rule. He would also raise the filing fee for late fees and charge an additional fee for any

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case where probable cause is found. The bar has a handbook with guidelines and do’s and don’ts that is available through the website, but attorneys don’t read it.

Mr. Chris Mobley, from the Daily Business Review, stated that he was impressed with the task force’s patience and willingness to listen. He shares the same viewpoint as the publisher of Florida Trend. He is the President of the Florida division of American Lawyer Media, a trade publication around the country, and publishes the Daily Business Review in South Florida. The revenue to his publication from lawyer advertising is less than 4%. The Florida Bar wants to protect the public and the undereducated consumer, but he cautioned the task force about the sweeping nature of the rules. The rules limit the attorneys ability to speak to other attorneys and business people. The task force should consider making distinctions between those types of sophisticated individuals and the general public. By making the rules so broad, there is undue restriction of Florida law firms to compete for referrals from other lawyers and sophisticated business people. It inhibits their ability to compete for commercial work from business executives who are sophisticated consumers. The rules put Florida lawyers at a competitive disadvantage with firms from other states. He applauds the committee’s work in protecting the public, but thinks the task force should make a distinction between the general public and targeted media that goes to other lawyers, other professionals and sophisticated businesspeople.

Mr. Alan Becker stated that the last time he attended a bar meeting, he had an advertising appeal that was ultimately overturned by the board of governors. In trying to regulate attorney advertising, the bar has misconceptions. First, the bar tries to treat the practice of law as a profession, not a business. Lawyers are in business, they must make payroll, must compete for talent and retain talent, must pay bills. The bar is restricting lawyers’ ability to compete. Law can be a noble profession and also allow advertising. As a fairly large law firm, his firm has an advantage over small to mid-size firms because he has an in-house marketer. However, he is at a disadvantage to larger firms such as Holland & Knight, because they have many in-house marketers. The cost of changing ad campaigns is less to Holland & Knight, because all of their production is in-house. He is also at a disadvantage competing with national firms that are not required to follow the bar’s rules, but are competing for the same national clients. He pointed out a large law firm’s ad that contained language that is impermissible in Florida: “we provide quality legal representation and solutions,” “I will be there to guide you to clear waters,” “providers of the highest quality legal services,” and “leaders in today’s complex arena.” He also pointed out an ad by Maguire Woods that shows a general counsel of a corporate client providing a testimonial, which is prohibited under Florida’s rules. He and other Florida lawyers are competing with these firms and cannot compete at their level. The bar’s well-intentioned efforts to protect the public have one effect: they harm Florida lawyers. It does not make better professionals to put lawyers out of business. There are 40 states living under the ABA Model Rules and there are no horror stories. The bar should not be in the business of protecting people from themselves if they choose a lawyer based on a bad or tasteless ad. The rules are confusing, impossible to follow and lack standards. In his own ads, the bar has approved “skilled” but not “talented,” approved “competent” but not “talented” or “innovative.” The answer depends on whose desk the ad arrives at. The bar thinks people are so stupid they cannot distinguish between puffery and real information. The average American views about 13,000 advertising impressions each week. The public is used to ads and they understand them, and the bar needs to give them more credit. If the bar wants to protect consumers from themselves, the protection should be limited to the general public. Sophisticated consumers don’t need protection. Ads

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going to in-house counsel and big executives are different than an ad going to someone whose loved one was killed in an accident or hauled off to jail. The task force should not devise rules using a broad brush. The only other ads that are regulated to this degree are ads for alcohol and tobacco - these are items that can kill people and that impact children. Surely the bar does not equate lawyers with alcohol and tobacco. Other professionals such as doctors, accountants, and bankers do not have this level of regulation. Please lighten up on business to business advertising.

3. Discussed the future meeting schedule. The task force will meet via conference call in July on a date to be determined. The chair announced that any others seeking to have input should provide their comments or requests to Ethics Counsel.

4. The meeting was adjourned.

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

July 26, 2004 2:00 p.m. until 5:40 p.m.

Via Conference Call Chair Manuel R. Morales, Jr. presided over the meeting. Nineteen (19) members attended: Bain Bales Bogan Bullard Curtis Ebbets Ebsary

Hammond Huang Leopold Lewis Meador Morales Munoz

O’Keefe Remsen Rush Sellers Wagner

Guest Cynthia Brown of the Senate Judiciary Committee and staff members Mary Ellen Bateman, Gary Blankenship, John Anthony Boggs, Lori Holcomb, Elizabeth Clark Tarbert, and Arne Vanstrum also attended the meeting. The committee took the following actions: 1. Approved the minutes of the June 24, 2004 meeting, but deleting the second sentence attributed to Representative Simmons.

Task Force member Leopold joined the conference call.

2. Discussed the oral and written comments by bar members. Task force member Rush stated that there were polar opposite views in the comments, which were somewhat helpful in laying out landscape. There were contradictory assertions regarding advertising in general; for example, William Harrell said advertising is necessary to reach minorities and lower socio-economic classes, while Stuart Grossman said it is not. Task force member Rush stated that he thinks the task force needs a body of data collected to decide whose views are accurate - is advertising helpful and necessary or does it just help lawyers? Is a particular form of advertising harmful? Those are threshold questions that need to be answered. Task force member Sellers stated that he shares that view. After the meeting in Tallahassee, he obtained a copy of Lawyer Advertising at the Crossroads, which was an extensive study done by the ABA that surveyed results from other states. The results were different depending on how the questions were couched. He thinks the task force needs more information on how the public really feels about this issue. All the Florida studies were done some time ago, and there is a younger population now. Advertising is pervasive among all professions, including the medical profession. Task force vice-chair Ebbets stated that he had 2 points: first, the communications committee has approved a budget item that he believes is related to a survey of lawyers that includes some advertising questions. His second point is that a public survey is an issue that has been discussed by board in the past. The task force leadership should determine if there is a possibility of board funding for a survey on advertising. Possibly there is some information that may be gleaned from the dignity in law campaign. Task force members Leopold and Sellers stated that

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information on lawyers’ attitudes towards advertising is irrelevant if the bar is interested in protecting members of the public. Task force member Sellers added that if the purpose is to enact rules that are designed to protect the public from misrepresentation and other unscrupulous behavior, the task force needs to hear from the public as to what they think are issues. Task force vice-chair Ebbets stated that the Board of Governors has an advisory board called the Citizens Forum made up of nonlawyers who have uniformly told the board that advertising in its present model has wounded the profession. Task force member Rush stated that he would hope that a survey would answer the questions posed at annual meeting. He would like to see information from the public as to whether they are getting useful, relevant, accurate information regarding attorneys from advertising. Task force member Hammond asked if the task force would have the financial wherewithal to do a broad based study that could be definitive, given Florida’s diverse and large population. Task force member Rush responded that the Communications Committee was told that 1100 responses would be a sufficient size. Task force chair Morales stated that he wanted the task force to focus on what is to be accomplished today. If the task force does a survey and find that 90% of people hate attorney advertising, there still must be rules to address it. If 90% of people love ads, there still must be rules to address advertising. There are already rules, the task force needs to decide which ones to keep, which ones to change and which ones to add, if any. Task force member Remsen commented that he would like to hear some discussion among the task force of whether there should be a distinction between commercial law firms going after sophisticated business clients and lawyers with a more consumer-oriented practice such as personal injury, criminal or family law cases. Task force vice-chair Ebbets volunteered to find out what information has been recently gathered by the bar on the issue of attorney advertising and report back to the full task force.

Task force member Wagner joined the conference call.

Task force member Rush commented that the specific recommendations by BLSE need to be addressed by the task force.

Task force member Huang added that the task force should also address the issues raised by the UPL Standing Committee Vice-chair who raised the issues of lawyer referral services being required to state that they are lawyer referral services in ads and also taking referrals from third parties who advertise in ways attorney cannot.

Task force member Bain commented that he wanted to highlight the comments of Stuart Grossman who made a point regarding attorneys who are experienced and have had successes in the courtroom, that the current rule handicaps them from telling prospective clients those results. The rule restricts advertisers from providing useful information that prospective clients might really want to know, and he thinks the task force should address that. Task force member Lewis agreed that needs to be discussed and questioned whether the advertising rules will continue to treat that differently for information on request.

3. Task force chair Morales stated that his goal for the conference call was to obtain consensus on the concepts, then direct staff to draft the concepts in the rules.

Discussed the following specific issues:

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a. Should information provided at the request of a prospective client be subject to the attorney advertising rules? If it is subject to the attorney advertising rules, should it be exempt from any of the rules (such as the current exemption from the prohibition against track record results and statements characterizing the quality of legal services)?

Task force member Lewis stated that he does not think there is any real problem in the community, the public or with lawyers with the status quo. When people are requesting information, there is no problem. The problem is for invasive ads not at the prospective client’s request. Task force member Remsen agreed. Task force chair Morales stated that, even if the task force recommends changes to the rules that would make them inapplicable to information on prospective clients’ request, there is still a general rule that prohibits lying that would apply to information on request. Task force member Sellers commented that the distinction involved is that members of the public have made choice to obtain info regarding the attorney as opposed to receiving information on an unsolicited basis. Task force member Hammond commented that if the public has made a conscious choice to obtain information, then the task force should be very wary of restricting access to that information.

Task force member Wagner asked if the task force protects the public by allowing a lawyer to run a flashy ad that says ask the lawyer to send more information; that is a distinction without a difference. Task force member Rush responded that the information falls into an area that is difficult to determine whether it creates unjustified expectations. Trial verdicts are no indication of what a result will be. Task force member Wagner stated that if Mr. Grossman says he has had 5 multimillion verdicts, there is no difference than if he says he has been very successful, call him and ask. Task force member Lewis stated that he is not sure the goal is to protect anyone from ever knowing the information, the issue is the invasion of privacy and whether there is any expectation of being bombarded with the information. Task force member Wagner stated that the Supreme Court has allowed total regulation of advertising of pornography, although it does not restrict the public from buying pornography. If TV. ads were eliminated, that would do away with the public’s objections to advertising. Task force member Lewis responded that would be a serious constitutional issue. Task force member Bain commented that there should at minimum be a rule that states that information on request cannot be false or misleading. Task force vice-chair Ebbets made a motion to direct staff to draft a rule that the attorney advertising rules are not applicable to information on requested, which was seconded by task force member Lewis. Motion passed, with members Bain, Bogan, and Wagner opposed.

Task force member Wagner raised his written motion about determining guiding principals in going through the issues raised by the chair in the agenda. The motion failed, with members Bogan, Hammond, Leopold and Wagner in favor of the motion.

b. Should information provided at the request of a prospective client be subject to the filing requirement if the task force determines that it is subject to any or all of the attorney advertising rules?

The consensus of the task force members was that information on request should not be subject to a filing requirement, consistent with its decision that the attorney advertising rules in general should not be applicable to information on request.

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c. Should permissible content of advertising be expanded to include military service (including branches and dates of service), punctuation marks, common typographical marks, the statue of liberty, the American flag, the American eagle, the State of Florida flag, an unadorned set of law books, a courthouse, columns, diplomas, and commonly recognized religious symbols (such as the cross, fish, Star of David)?

Task force member Munoz raised the issue of whether federal statutes prohibit the commercial use of the American flag. The task force consensus was to approve the list of additional exemptions subject to deleting the American flag if its use is prohibited by statute. Task force member Ebsary volunteered to research the issue. He reported that his reading of the statute is that it is limited to advertisements in Washington, D.C.

d. How should the task force treat lawyers who intend to refer out the cases that they are advertising for? Should the lawyer be required to disclose the intent to refer out cases in the advertisement itself?

Task force member Bogan commented that statutes force mortgage companies to disclose the likelihood that a mortgage will be sold and sees no difference for this issue. Task force member Lewis agreed that lawyers should be required to disclose an intent to refer cases out. Task force member Wagner asked what the likelihood is that a lawyer would claim that the lawyer had not decided at the time the advertisement is run, therefore the rule is just nitpicking. Task force member Rush stated that the rule addresses a real problem that is out there. The rule does not apply to a general practitioner that has not decided. Task force chair Morales asked about the lawyer who does personal injury, but does not do trial work - does such a lawyer have to disclose to prospective clients that the lawyer will not handle the trial? Task force member Bogan stated that in such an instance, the triggering event is the filing of a lawsuit; if the lawyer knows on the front end that the lawyer will not handle the trial, the lawyer should have to disclose that to prospective clients. That goes to the issue of who client believes he or she is hiring. If the task force requires otherwise, the client does not know the other lawyer is in the picture.

Task force chair Morales stated that he sees a distinction between a lawyer who does nothing on a case and a personal injury lawyer who on a particular case or a particular type of case decides to refer it out. Task force member Lewis stated that he does not think the task force should go backwards and take away a protection. Task force member Bales stated that the task force is trying to make the rules easier to understand; the rule is fraught with problems, because it is hard to interpret. It is good for lawyers to refer out cases; if a lawyer is not competent to handle a particular case, the lawyer should refer it out. Task force member Lewis states that the task force needs to reach a general consensus and asked whether the conduct happens across the state. Task force member Wagner stated that the task force could do a lot more in this area if it required mandatory disclosure of liability insurance and of the percentage of cases referred out per year. The rule is frustrating for the bar to enforce.

Task force member Rush stated that task force members are reading the question way too broadly. The rule is intended for lawyers who intend to refer out the cases they are advertising for, not for the lawyers who intend to take cases and decide a particular case is not for them. It is that specific and limited. Task force chair Morales stated that the task force must be very limited in what it is trying to prohibit here, because the task force does not want to discourage lawyers

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from seeking help when they cannot competently handle a case. It sounds like those in favor of the rule want to limit attorneys from doing nothing but brokering cases. Task force member Lewis asked if anyone has ever been disciplined for violating the rule. Staff reported there were none. Task force member Wagner stated that if the bar wants to regulate brokering cases, it does not need to regulate advertising, it needs to regulate brokering. Task force member Lewis stated that the task force should not recommend vague, unenforced and unenforceable rules. A motion to delete rule passed, with task force members Munoz, Bogan, Hammond, and Sellers opposed.

e. Should the rules include a definition of "advertising" or "advertisement?" If so, what should the definition be?

The task force directed staff to draft a definition or multiple definitions for the committee’s consideration.

f. Is a communication between lawyers subject to the attorney advertising rules? Is it clearly excluded in the current rules? Should it be?

Task force chair Morales stated that at the last meeting, there seemed to be a consensus that communications between lawyers should not be subject to attorney advertising rules and should be clearly excluded. Task force member Rush stated that he thinks there is a difference between communications between lawyers and ads directed at lawyers. Task force member Wagner stated that there could be an issue if a lawyer is using other lawyers as a pass-through to prospective clients. Task force member Bogan posed a hypothetical to the task force members of communications from attorneys advertising what they can and cannot do that he receives at the Attorney General’s Office. Before he receives his mail, it probably goes through no fewer than 10-15 sets of nonlawyer eyes that look at that ad before it gets to him, because that is office protocol. The same protocol exists in other agencies. Looking at it from the perspective of the sender, is that a way to circumvent the rules? To say an ad is lawyer-to-lawyer does not mean that before it gets to the lawyer that others have not seen it. Task force member Wagner asked whether an ad published in the bar news directed at other lawyers is an ad. When he thinks of communications between lawyers, he thinks of newsletters sent specifically to other lawyers for the purpose of getting referrals. He does not see communications between lawyers as including cocktail talk or an ad in bar news, or an ad in local bar newsletter. Task force member Rush stated that he does not believe that is the issue. He would like to see consistency in the rules. There are some differences between what lawyers can do in radio/t.v. versus direct mail. Those rules should apply even if the advertisement is directed at another attorney. That is different than a lawyer sending a letter to 5 lawyers in Miami saying I have a case that is a Miami case, are you interested in representing that client? Lawyers are subject to the same issues that the general public is regarding creating unjustified expectations, etc. Task force member Lewis stated that he thinks that the task force should not be concerned about what other lawyers think regarding newsletters. Task force member Bales stated that the task force should concentrate on regulating what is truly bad and leave the rest alone to not burden other lawyers. He is concerned about the bar wasting resources on things that are not causing a problem. Task force member Lewis agreed that the task force should worry about what the public thinks about lawyers and should not concentrate on what lawyers think of other lawyers. Task force member Munoz stated that one issue that has come up in the SCA is whether lawyer-to-lawyer communication should be treated differently when the lawyer is receiving the communication in the role of representing

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clients (such as a consumer or as a prospective client that happens to be a lawyer) than in other roles? The task force determined that the communications should be exempt from the attorney advertising rules, that should be clear in the rules, and directed staff to draft rules reflecting that decision, but with task force member Rush opposed.

g. Should out of state lawyers who advertise in Florida be subject to Florida's rules? If so, what advertisements by out of state lawyers should be covered?

UPL Director Lori Holcomb reported to the task force that there are rules pending at the Supreme Court of Florida that arguably would subject out of state attorneys to the attorney advertising rules when the out of state attorneys are advertising for services that they legitimately provide in Florida matters. Generally, an out of state attorney cannot advertise for services that they are not authorized to provide. UPL looks at ads from out of state attorneys on a case-by-case basis - if they are advertising for services they are not authorized to provide, UPL tells the out of state attorneys to stop. Task force member Bogan raised the issue of attorneys living in border communities, such as in Tallahassee or Pensacola. Task force member Wagner asked about UPL’s position regarding out of state attorneys advertising ad in national magazines that are disseminated across the country. UPL Director Holcomb responded that multistate firms advertising in national media is a more difficult question. She added that the real problem is the NY attorney who moves to Florida and opens an office to provide an authorized practice, like immigration, but who does not follow the attorney advertising rules, e.g., a D.C. lawyer who moves to Miami. D.C. allows in-person solicitation, while Florida does not, so the D.C. bar will take no action against the D.C. bar member.

The task force directed staff to draft rules subjecting out of state lawyers to Florida’s attorney advertising rules.

h. Should lawyers be required to disclose a bona fide office location in all ads?

Task force chair Morales stated that the question is whether a client should know from the get go that the advertising attorney is located in a particular location. He does not see that as being absolutely necessary. Task force member Ebsary raised the issue of restraint of trade. Task force member Munoz stated that the information is relevant, because in many cases, the client will pay more money in costs if the lawyer is located far away than if the lawyer is nearby. The consumer may not know where the attorney is located until the attorney has already persuaded the consumer to hire the attorney. Task force member Lewis stated that the task force has heard no clamoring from the public. Task force member Bain responded that there are no complaints from the public because it is a current requirement. The regulation puts no burden on the attorney and provides useful information that prospective clients would want to know. The cost of litigation will be higher if the attorney is located further away. It also will not look good if the task force loosens that restriction. Relaxing this rule does not benefit the public. Task force member Ebsary stated that every rule will be subject to a possible constitutional challenge. Task force member Rush stated that the task force should have history of rule before doing anything to change it. There is no burden to the attorney in requiring the geographic location, and public harm could occur if it is not required.

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The task force voted 9-7 in favor of retaining the requirement that lawyers include the geographic locations of at least one bona fide office in all advertisements.

i. Should the current requirement be retained that lawyers who advertise local telephone numbers where they have no bona fide office make an appropriate disclosure that it is a phone number only, not an office?

The task force consensus was to delete the rule, in light of the geographic disclosure requirement above.

j. Should the current requirement be retained that all required information must be at least one-quarter the type size of the largest type used in the ad?

The consensus of the task force was to delete the requirement that all required information be in type size that is one-quarter the type size of the largest type used anywhere in the advertisement, while retaining the requirement that required information be clearly legible/clearly intelligible.

k. Should the hiring disclosure for print ads be eliminated? ("The hiring of a lawyer is an important decision that should not be based solely on advertising. Before you decide, ask us to send you free written information about our qualifications and experience.")

The task force voted to delete the hiring disclosure in print ads with task force members Bogan and Rush opposed.

l. Should "prior professional relationship" in the solicitation rule be defined or changed? (The rule states that a lawyer can directly solicit a family member or someone with whom the lawyer has a "prior professional relationship.")

Task force member Ebsary stated that the task force is on firm constitutional ground with in-person solicitation; there is harm and there is a prior history with difficulty. Task force member Munoz stated that the question is how far the bar should regulate and whether there should be exceptions between professionals or persons who meet in certain contexts. He thinks that prior attorney-client relationship is too narrow a definition. Task force member Lewis stated that his concern is possibly opening up the door. A lawyer is a professional, so every relationship a lawyer has could be considered a professional one. He would like to see a more narrow definition rather than more broad. Task force chair Morales stated that the task force does not really need to define solicitation. It needs to decide whether or not to except “prior professional relationship” and who would be included. Task force member Lewis stated that he does not think lawyers should be allowed to solicit prior clients either, but solicitation definitely should not be expanded to others. He can understand exception for family members and even current clients, but not prior clients. He believes that the task force should treat personal injury cases differently than other areas of practice regarding solicitation.

m. Should criminal defense lawyers be prohibited from sending direct mail communications within 30 days of arrest (extending the prohibition currently for personal injury to criminal)?

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Task force member Willard stated that since the last task force meeting, he has had numerous clients come in to his office complaining about receiving direct mail in criminal cases. He supports extending the 30 day ban to criminal cases. Task force member Sellers disagreed, stating that criminal defendants need to see a lawyer within 30 days, because so much can happen in a criminal case within 30 days of an arrest. Most criminal defendants usually have an arraignment sooner than 30 days of the arrest. A lot happens at arraignment, including talking directly to a prosecutor when it might not be in the defendant’s interests. They also might get advice on the fly from a public defender who knows nothing about the case. Task force member Willard responded that task force member Sellers is suggesting that lawyer advertising can make up for defects in the system. What rights are criminal defendants losing by not getting a mailout? Task force member Sellers responded that the issue is whether the criminal defendants are receiving information that allows them to assert their rights. Task force member Bogan asked whether criminal defendants can obtain the same information from the yellow pages. Task force member Lewis stated that the task force should look where people are going to attack. Making personal injury lawyers wait 30 days and not making criminal lawyers wait the same period where the criminal defendants have already been informed that they have a right to a lawyer is inconsistent. Task force member Ebsary stated that he is a board certified criminal trial lawyer and he has only heard of one problem with direct mail in criminal cases, and that is where someone received a mailing for someone who was deceased. The issue is protecting people from real harm. In Tampa, criminal defendants must have their court dates set within 10 days. There are only 10 days to set administrative hearing after someone has been arrested for DUI. The 30 day rule in personal injury cases was the result of a specific instance of real harm. Extending the 30 day rule will raise anti-competitive issues. Task force chair Morales stated that criminal defense attorneys argue that in 30 days in a criminal case, a criminal defendant can waive important rights. Nothing much happens in first 30 days of a personal injury case. Task force member Rush stated that an injured person can settle a personal injury case with an adjuster in 30 days. Task force member Bogan stated that he lacked sufficient information to decide.

Task force member Hammond left the conference call.

The task force directed staff to draft language extending the 30 day rule to criminal cases for the task force’s consideration at a later meeting, deferring a decision on the proposed rule change.

n. Should communications sent only to other lawyers, family, and prior clients be exempt from the advertising rules?

The task force tabled consideration of this issue until the next meeting.

o. Should communications sent only to other lawyers, family, and prior clients be exempt from the filing requirement?

The task force tabled consideration of this issue until the next meeting.

p. What is information upon request? If a person has actually spoken to a lawyer, should any information provided to that person be subject to the advertising rules? E.g., must a lawyer who has spoken to a prospective client who sends a contract to the prospective client through the mail mark it "sample" and "do not sign?"

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The task force tabled consideration of this issue until the next meeting.

q. Should the terms "celebrity" and "spokesperson" be defined in the rule on t.v. and radio ads?

The task force tabled consideration of this issue until the next meeting.

r. Should t.v. and radio continue to be treated differently than print?

The task force tabled consideration of this issue until the next meeting.

s. How should the task force handle computer activities?

i. Should web pages sponsored by the lawyer or law firm be exempt from filing?

ii. Should any special requirements be imposed for websites sponsored by a law firm?

iii. Should e-mail be treated as direct mail?

iv. Should real time communications be addressed in the rules (such as chat rooms)?

v. Should pop-up ads be addressed by the rules?

vi. Should spyware be addressed by the rules?

The task force tabled consideration of these issues until the next meeting.

r. How should lawyer referral services be defined?

The task force tabled consideration of this issue until the next meeting.

s. What limitations can the bar place on lawyer referral services?

The task force tabled consideration of this issue until the next meeting.

t. Should lawyers be required to file ads and receive approval from the bar before using the ads?

Task force member Wagner asking for guidance on the issue of whether the risk is not worth the money unless there are really atrocious ads that have run that would have been used. He is very concerned about any prior approval, unless the board wants to totally prohibit lawyer advertising on t.v. He added that the rules should require that any lawyer found to have any ad violation, must get prior approval for a period of years. Task force member Wagner asked if the attorney has run one bad ad, does that justify prefiling for 600 good ads? Task force member Bain stated that he agrees with task force member Bogan that harsher sanctions for rule violations would be better and more meaningful than prior approval. Task force chair Morales asked how the task force can to get to harsher sanctions rather than prior approval. Task force member Wagner

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responded that the issue should be included as a strong part of report and the chair will argue strongly at the board meeting. Task force member Bales asked the task force to rethink harsher sanctions - many are lawyers who don’t know any better. The bar instead should strengthen penalties for repeat offenders. Task force chair Morales suggested that the rules guarantee no prosecution for lawyers who pre-submit and obtain approval, but others will be subject to sanctions. Task force member Ebsary stated that he agreed with the proposal, because it gives the lawyer the option to protect his or her First amendment rights, but if the lawyer wants to be safe, he or she can pre-submit.

u. What ads should be required to be filed for review? All ads? If not, which ones?

The task force tabled consideration of this issue until the next meeting.

v. How should public service announcements be defined? Should they be required to be filed for review?

The task force tabled consideration of this issue until the next meeting.

4. Discussed the future meeting schedule. The next meeting in-person meeting of the Task Force is scheduled for Thursday, September 9, 2004 from 9:00 a.m. until 4:00 p.m. at the Tampa Airport Marriott in conjunction with The Florida Bar’s General Meeting.

5. The meeting was adjourned.

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

August 25, 2004 2:00 p.m. until 4:45 p.m.

Via Conference Call Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen (15) members attended: Bain Bales Bogan Bullard Ebsary Hammond

Kiser Leopold Lewis Meador Morales Munoz

O’Keefe Sellers Willard

Guest Cynthia Brown of the Senate Judiciary Committee and staff members Mary Ellen Bateman, Gary Blankenship, John Anthony Boggs, and Elizabeth Clark Tarbert also attended the meeting. The committee took the following actions: 1. Approved the minutes of the July 26, 2004 meeting. 2. Task force chair Morales reported that he had asked staff to draft a range of possible options on evaluation of advertisements for committee consideration in September. He also reported that staff was collecting data on compliance with the attorney advertising rules. He stated that staff would draft changes to the rules based on decisions and comments by the committee to date for the September meeting. After the September meeting, he expects to have a working document as an interim report that can be posted on the website and circulated to the bar for comment. Finally, he reported on a meeting between President Johnson, Barry Richard and others in Tallahassee. 3. Discussed the following issues:

A. Should communications sent only to other lawyers, family, and prior clients be exempt from the advertising rules?

Task force member Lewis stated that a former client may have asked for information when originally agreeing to be represented by a lawyer, so the bar could take the position that is all information on request. Task force member Bogan asked if there is a definition of “family” in the rules. He sees the potential for abuse for attenuated “family” relationships. Staff responded that there is no definition of family in the rules. Task force chair Morales stated that he did not think the task force needs to address the worst case scenario. Task force member Lewis stated his opinion that there should be no solicitation of anyone, including family and prior clients at all. The task force discussed the possibility of an exemption from the rules for communications with family members and prior clients except for direct, in-person solicitation and targeted direct

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mail solicitations. Task force member Bales stated that he served on a grievance committee as chair and served as an SCA member, and advertising is not the bar’s biggest problem. The problem is that lawyers do not return phone calls, they are arrogant, and they are paternalistic. Lawyers assume that they know what the public thinks of as problems. Lawyers should be able to talk to family members regarding their legal health. The task force is getting bogged down with little rules that no one can understand. He has had a past client who had the wrong leg operated on and insurance people were in the hospital room asking the former client to sign a release. Task force member Lewis raised a concern about the possibility that an attorney will get a big book of clients just so he/she can solicit. He suggested that family members and current clients be exempt from all rules except solicitation; then if the conduct is allowed under the current solicitation rule, it would be permissible. Task force member Leopold spoke against regulating communications with family members and former clients. Many contacts with former clients from his firm are in the nature of newsletters, birthday cards and the like. Former clients are people who have already given their trust to a particular lawyer. Task force member Bogan raised the concern of lawyers creating unjustified expectations, testimonials and past results, which will be permitted if communications to family members and prior clients are exempted from the rules. Task force member Munoz commented that those communications would still subject to the general requirement that they cannot be false or misleading. Task force member Kiser commented that his opinion regarding application of the rules to prior clients depends on how recent the representation was. Task force member Lewis commented that unethical attorneys will go to other lawyers and tell them to solicit their own former clients and refer them to the lawyer for a referral fee. He also suggested using the language “immediate” family member instead of just “family member.” The task force directed staff to draft language exempting family members and prior clients from the advertising rules, with task force members Kiser, Lewis & Bogan dissenting.

B. Should communications sent only to other lawyers, family, and prior clients be exempt from the filing requirement?

The task force determined that the issue was moot in light of its decision regarding application of all attorney advertising rules.

C. What is information upon request? If a person has actually spoken to a lawyer, should any information provided to that person be subject to the advertising rules? E.g., must a lawyer who has spoken to a prospective client who sends a contract to the prospective client through the mail mark it "sample" and "do not sign?"

The task force determined that this issue was determined by its prior decision to exempt information on request from the attorney advertising rules.

D. Should the terms "celebrity" and "spokesperson" be defined in the rule on t.v. and radio ads?

Task force member Bales commented that the rules should not require an announcer who does not appear on screen to state the announcer is a spokesperson and nonlawyer. Ethics Counsel Tarbert stated that an issue has come before the Standing Committee on Advertising on the

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common usage of radio personalities to read advertisements, and whether they must make spoken disclosures that they are not lawyers. The custom of the radio industry is to use radio personalities to read advertisements on-air. Additionally, for public radio, FCC regulations require that the advertiser cannot read their information on-air. Should the task force consider deleting the requirement of a spoken disclosure in cases where it is evident that the person is a spokesperson and not a lawyer. Task force member Kiser commented that the task force should consider taking no position, because the change is so recent, then letting the issue work out at the standing committee level. Task force member Bain stated that the rules should only require a disclosure where the context is misleading. Task force member Bales stated that the public is used to having voice-overs by announcers who are not part of the advertising company or product; the public will not necessarily assume that an announcer who is not seen is a member of the firm. Task force member Lewis stated that perhaps the only misleading context is where the spokesperson appears visually in the advertisement and suggested redrafting the rule to address that alone. Task force member Kiser stated there could be an issue with deception on the voice alone, not just where the spokesperson’s image is used. Task force chair Morales asked whether the same issue would be true of print and billboard advertisements, if a firm used a model. Task force member Bain stated that the real issue is whether the context makes plain that the spokesperson is not a lawyer. If not, the advertisement must disclose that. Task force member Meador indicated, if the only concern is public service announcements being spoken by radio personalities on public television, the task force could address the issue by drafting an exemption into the rule on public service announcements or the definition of advertising. The task force directed staff to draft alternatives for its consideration.

E. Should t.v. and radio continue to be treated differently than print? The task force consensus was to continue to treat television and radio differently than print.

F. How should the task force handle computer activities? i. Should web pages sponsored by the lawyer or law firm be exempt from filing? The task force consensus was that web pages sponsored by lawyer or law firm should continue to be information on request, meaning that under the task force’s proposed rules, they would not be subject to regulation except the general misconduct rule. ii. Should any special requirements be imposed for websites sponsored by a law firm? The task force consensus was that the rules should retain the special requirements of the geographic disclosure and jurisdictional limitations disclosure. iii. Should e-mail be treated as direct mail? The consensus of the task force was to continue to treat e-mail in the same way as direct mail.

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iv. Should real time communications be addressed in the rules (such as chat rooms)? Task force member Munoz stated that he raised this issue on the subcommittee, and he believes that the conduct is most closely parallel to direct, in-person solicitation. Task force member Ebsary stated that he directs his clients not to talk in chat rooms, and the bar has received no complaints on this conduct. Task force member Munoz stated that directly addressing the issue in the rules would provide clear guidance so lawyers do not have to wonder if the conduct is regulated. Task force chair Morales stated that the issue is already addressed in the direct solicitation rule. The consensus was that there was no need to address chat rooms specifically in the rules. v. Should pop-up ads be addressed by the rules? Task force member Hammond stated that pop-ups and banners are covered already by Rule 4-7.6(d). The consensus of the task force was that there was no need to change the rule. vi. Should spyware be addressed by the rules? Task force member Ebsary stated that he does not know of any lawyers who have used spyware to advance their legal practice. Task force chair Morales stated that it will likely be the subject of federal or state regulation. The consensus of the task force was not to address this issue in the rules.

G. How should lawyer referral services be defined? Task force chair Morales noted that task force member Hammond sent out a proposed definition. Task force member Hammond commented that the current definition has generated confusion and debate, raising the examples of The Fund and BLSE, so the issue should be examined. Task force chair Morales stated that lawyers should not be able to generate business from ads that violate the rules. Task force member Ebsary stated that a related area is that The Florida Bar has received complaints about lawyer referral services and has requested information from the lawyer referral service, and those entities are not cooperating. There is a harm and the bar needs to find a way to enforce the rules. Task force chair Morales stated that under the rules, it is the lawyer’s responsibility to ensure that the lawyer referral service is acting in compliance with the rules if the lawyer is taking referrals from the lawyer referral service. Task force member Hammond stated that the broad definition has thrown a big net that covers organizations that are not lawyer referral services. As an example, the Fund is only informing the public in a public education campaign that they should hire a lawyer in real estate cases. Task force member Sellers joined the conference call. Task force member Munoz stated that the point is not to allow a loophole to avoid application of the rules to advertising for attorneys when the attorney is not the one running the ad. Legal Division Director Boggs stated that he was involved in this rule’s adoption. The bar’s concern was with any third party group running ads not in compliance with the rules and creating an

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uneven playing field. Task force member Morales pointed out that the rules do not say there is anything wrong with being a lawyer referral service, just that their advertisements must comply with the advertising rules. Legal Division Director Boggs added that any part of the bar should be in compliance with rules, whether or not the rules specifically require them to be so; for example, attorney ads that run in the bar News and Journal must comply with the ad rules under bar policy, even though the ad rules are not specifically applicable to them. Task force member Bogan stated that he believes no further clarification of the definition is required. Task force member Sellers stated that if the task force tries to chisel out exception for one group, it will create a decision that could be used in the future for a lawyer who can figure out a way around the rules that fits within same classification as this one. Task force member Hammond stated that he is not asking for an exception, just asking for clarification about what the bar is trying to stop. Task force chair Morales stated that the bar is not prohibiting anyone from advertising or referring cases. The Fund can advertise and refer cases, but the Fund must follow the advertising rules. If lawyers get cases from nonlawyers who advertise, then the nonlawyers must follow the ad rules. The task force determined that there was no need to further clarify the definition, with task force member Hammond dissenting.

H. What limitations can the bar place on lawyer referral services? The task force determined that this issue had already been addressed adequately.

I. What ads should be required to be filed for review? All ads? If not, which ones? The task force determined that the issue had already been adequately addressed.

J. How should public service announcements be defined? Should they be required to be filed for review?

Ethics counsel Tarbert stated that task force member John Remsen had raised at a Standing Committee on Advertising meeting the issue of permitting any exempt information to be published in a public service announcement and still be exempt from the filing requirement. The issue arises frequently on public radio where an announcer will state that the news or a show is brought to the public by X law firm, personal injury lawyers since 1970, and the like. The Standing Committee on Advertising constructs the current rule very strictly. Any public service announcement that contains any information about the lawyer other than name and city must be filed. Task force member Munoz stated that he was in favor of the idea. The information is all permissible content and therefore should not be harmful to the public. Task force members Bales and Ebsary also spoke in favor of the idea. The task force directed staff to draft language adding permissible content to the rule on public service announcements, while retaining the criteria for determining a public service announcement, with task force member Bogan abstaining because of lack of sufficient information.

K. Should a distinction be made between sophisticated consumers and the general public?

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Task force member Sellers commented that the task force would then have to define a sophisticated consumer, which would be very difficult to implement. Additionally, unsophisticated consumers might gain access to advertisements aimed at sophisticated consumers. Task force member Bales agreed that discerning between sophisticated and unsophisticated is too difficult. Task force member Munoz stated that although difficult, distinctions could be made between, for example, business people and others. Task force member Bogan stated that he does not agree with the premise that one is sophisticated just because one runs a business. Task force chair Morales expressed sympathy with the position of an exception, but stated that he did not know how to carve out such an exception. Task force member Bogan stated that he was sympathetic to the plight of some bar members who attended the June meeting, but does not believe it is an ill that can be cured. The consensus of the task force was to not create an exception for sophisticated clients.

L. Should the task force prohibit use of terms such as “practice limited to” as requested by BLSE?

Task force member Ebsary stated that such a prohibition would go far beyond the existing rules and would be subject to challenge. It appears to be just an effort to protect turf. Task force member Bogan agreed, stating that if the task force recommended this prohibition today, tomorrow there will be a request to prohibit statements such as “I only handle [practice area].” Task force member Bain agreed, noting that there are people who practice in areas in which there is no certification, and they should be able to truthfully state that they limit their practice to that area. Task force member Sellers agreed, stating that it is permissible to regulate use of the term “specialize” because it implies something other than normal skills and experience. “Practice limited to” does not imply anything other than that the attorney only practices in one specific area of law. The consensus of the task force was to not recommend this suggestion.

M. Should the task force require that all ads for lawyer referral services explicitly state that the lawyer referral service, as requested by the UPL Standing Committee?

The task force consensus was to adopt such a requirement.

N. Should the task force explicitly prohibit lawyers from accepting cases referred by persons/organizations who advertise in a way that would be prohibited if a lawyer used the advertising, as suggested by Wayne Thomas?

The task force consensus was that this issue is already addressed by other rules. 4. Discussed the future meeting schedule. The next meeting of the Task Force will be held on Thursday, September 9, 2004 from 9:00 a.m. until 4:00 p.m. at the Tampa Airport Marriott in conjunction with The Florida Bar’s General Meeting.

5. The meeting was adjourned.

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

September 10, 2004 9:00 a.m. until

Via Conference Call Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen (15) members attended: Bain Bales Bullard Curtis Ebbets Ebsary

Kiser Lewis Meador Morales Munoz O’Keefe

Remsen Sellers Willard

Staff members Mary Ellen Bateman, Gary Blankenship, John Anthony Boggs, and Elizabeth Clark Tarbert also attended the meeting. The committee took the following actions: 1. Approved the minutes of the August 25, 2004 meeting. 2. Heard a report from staff on proposed rules from the Multijurisdictional Practice Special Committee. 3. Discussed comments received from bar members since the last meeting. Noted that most comments seemed to address the proposal to extend the 30 day rule to criminal defense cases. 4. Discussed other state action on advertising rules. A. Heard a report from staff on the order of the Supreme Court of Kentucky replacing prior review with contemporaneous filing requirement. B. Heard a report from staff that the State Bar of New Mexico posted a notice on its website that the New Mexico Supreme Court has withdrawn rules requiring review of attorney advertising. C. Heard a report from staff that the State Bar of Texas posted a notice on its website interpreting Texas attorney advertising rules on unjustified expectations.

5. Heard a report from staff on statistical information regarding compliance with the advertising rules from years 1991 through 2004. 6. Discussed the draft rules: A. The task force voted against including a definition of advertising in the attorney advertising rules. B. Alternatives for application of the rules to out of state lawyers: The task force voted to redraft proposed rule 4-7.1(d) to include subdivisions to make the draft rule clearer. Voted to approve new subdivisions (e) through (j) in Rule 4-7.1 and added commentary at lines 148-150.

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Task force member Sellers left the conference call. C. Voted to add language “except as provided in Rule 4-7.1(f) through (i) to the beginning of Rule 4-7.2 before subdivision (a). D. Voted to remove “commonly recognized religious symbols” from exempt information at line 226 after staff repeated a comment made telephonically by a bar member. E. Voted to add “written communications” in 4-7.2(b) at lines 174-178 for consistency. F. Voted to approve a suggestion by staff that Rule 4-7.2(b)(14) be reorganized as 4-7.2(b)(2). G. Voted not to approve a suggestion by staff re new draft proposed Rule 4-7.2(c)(12) that would prohibit any third party from paying the costs of a lawyer’s advertising H. Voted to approve a suggestion by staff to reorganize Rule 4-7.2(c) to put all content-based regulations together and move other regulations to the end of the rule. I. Voted to approve a suggestion by staff to add to 4-7.2 comment under “Communication of Fields of Practice” clarifying language regarding certification by other state bars, having “expertise,” and use of terms such as “concentrate” or “focus on” J. Voted to approve alternative one, defining “prior professional relationship” in the comment to Rule 4-7.4(a), and directing staff to draft additional commentary stating that attendance at seminars where the lawyer is a speaker by itself does not create a prior professional relationship, and addressing a lawyer’s contact with charitable and civic groups as a legal representative versus as a member, stating that contact as a legal representative of the group does create a prior professional relationship, while contact as a fellow member does not. K. Voted to publish three alternatives regarding extension of the 30 day rule in Rule 4-7.4(b)(1)(A) and comment: one to leave as is, a second to extend the 30 day rule to criminal matters, and a third to extend the 30 day rule to criminal matters and civil traffic matters. L. Voted to approve a suggestion by staff to delete Rule 4-7.4(b)(2)(C) regarding filing requirement and moving records retention to Rule 4-7.7. M. Voted to approve a suggestion by staff to add to comment to Rule 4-7.4 that terms like “public records” do not comply with the requirement that the source of information be disclosed in targeted direct mail. N. Voted to adopt alternative two regarding use of nonlawyer spokespersons in Rule 4-7.5(b)(2) and comment, but reversing the language to state that there is a duty to affirmatively disclose a spokesperson’s status unless it is clear from the context of the advertisement that the spokesperson is not a lawyer and not a member of the firm. Voted to approve a change in terminology from “attorney” to “lawyer” for consistency with the rules format. O. Voted to approve a suggestion by staff to delete obsolete portion of Rule 4-7.5 comment on definition of “member” of law firm. P. Voted to approve a suggestion by staff to delete “and home pages” from Rule 4-7.6(b) as redundant. Voted to delete subdivisions (b)(1) and (b)(2) from the rule. Q. Voted to approve a suggestion by staff to add that electronic direct mail is subject to Rule 4-7.2 for consistency with other rules in Rule 4-7.6(c)(1). Voted to add to the comment that pop-ups and banner ads are examples of computer-accessed communications subject to the rule. R. Voted to approve a suggestion by staff to delete electronic direct mail from Rule 4-7.6(d).

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S. Discussed options for review of advertisements in Rule 4-7.7. Voted against adopting a rule that would not require any review of advertisements. Voted to adopt alternative two, but with the following changes: directed staff to draft changes that would make advertising opinions of The Florida Bar binding on The Florida Bar in grievance proceedings; directed staff to delete the provision that would allow the bar to correct a mistaken opinion at lines 1573-1575; and directed staff to add commentary about the safe harbor for lawyers who choose to voluntarily submit their advertisements for pre-approval. T. Voted to adopt alternative two for filing exemptions in Rule 4-7.8. U. Voted to delete Rule 4-7.9 in its entirety because it is now addressed in proposed Rule 4-7.1. 7. Directed staff to post an executive summary and the draft rules in legislative format on the website for member comment and seek publication of information regarding the draft in the bar News. 8. Discussed the future meeting schedule. The next meeting of the Task Force is scheduled for Thursday, January 20, 2005 from 9:00 a.m. until 4:00 p.m. at the Hyatt Regency in Miami in conjunction with The Florida Bar’s Midyear Meeting. 9. The meeting was adjourned.

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

November 1, 2004 9:30 a.m. until 12:00 p.m.

Via Conference Call Chair Manuel R. Morales, Jr. presided over the meeting. Sixteen (16) members attended: Bain Bales Bogan Curtis Ebbets Ebsary

Kiser Leopold Lewis Meador Morales Munoz

O’Keefe Rush Wagner Willard

Staff members Mary Ellen Bateman, John Anthony Boggs, and Elizabeth Clark Tarbert also attended the meeting. The committee took the following actions: 1. Task force chair Morales asked the task force members to discuss the request by The Florida Bar Board of Governors to address current Rule 4-7.2(b)(1)(B) regarding “unjustified expectations.” Task force member Wagner made a motion that the task force delete the rule because it is unclear, which was seconded by task force member Bales. Task force members Bales, Ebsary, Leopold and Lewis spoke in favor of the motion. Task Force member Rush spoke against the motion stating that the phrase has been defined in a case-by-case basis and the rule provides a check for advertising abuses. Task force member Bain commented that the rule as written does not appear to be clear and easy to apply. The task force members voted 8-7 to delete the phrase “or is otherwise likely to create an unjustified expectation about results the lawyer can achieve” in proposed rule 4-7.2(c)(1)(G). Task force member Wagner made a motion to direct staff to draft language prohibiting guarantees as a separate subdivision in Rule 4-7.2(c)(1), which was seconded by task force member Lewis. The motion passed, with two dissenting votes. 2. Task force chair Morales asked the task force members to discuss the request by The Florida Bar Board of Governors to draft alternatives for the board’s consideration on prior review of attorney advertisements. Task Force vice-chair Ebbets commented that he gave a report to the board at its October 2004 meeting, summarizing the task force actions to date, and providing them with copies of the drafts being published for comment on the board’s website. He stated that the board greatly appreciated the hard work of the task force. The board engaged in a lengthy debate regarding the issue of prior review of advertisements. The culmination of the discussion was a unanimous vote of the board members present to ask the task force to draft a proposed rule on prior review, understanding that the task force was not recommending such a rule. Task force chair Morales commented that the board’s request is not to change a task force recommendation, but to draft and publish alternatives for bar members to comment on. The task

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force would then have the opportunity to have input on a rule on prior review, whether or not the task force recommends such an alternative. Task force member Wagner spoke against the idea of drafting additional alternatives for the board’s review. If the board rejects the final recommendations of the task force, the board can then draft its own alternatives or request the task force to draft additional alternatives. Task force member Bales also spoke against further drafting, stating that changes to the review requirements might affect other changes to the proposed rules, which the task force has not yet had time to consider. Task force member Munoz joined the conference call. Task force member Wagner made a motion not to publish any alternatives or provide any alternatives to the board. The motion was seconded by task force member Bogan. Task force member Bain stated that, although he tends to agree with the notion of efficiently addressing all options at one time, he is concerned that changes to the rule on reviewing advertisements might affect other rules under discussion. Task force member Munoz spoke against publishing alternatives, stating that the task force should send a message to the board that the task force has discussed the issue at length and has dealt with the issue of prior review by recommending against it. The task force should not even publish for discussion alternatives that members of the task force believe could be unconstitutional. Task force member Rush spoke in favor of publishing alternatives to encourage public debate and discussion on the issue which would not otherwise occur. Task force member Ebsary spoke against publication, stating that the board should publish on its own if it wants to consider prior review as an alternative. Comments from members for or against prior review does not create the kind of record that could sustain a constitutional challenge. Task force member Rush proposed an amendment to the motion to publish the alternatives with qualifying language that the task force is not in favor of the alternatives, but publishes them at the request of the board. The motion to amend was seconded by task force vice-chair Ebbets. The motion to amend passed 8-7. Task force members Bain, Bogan and Willard left the conference call. Task force member Munoz made a motion, seconded by task force member Rush to publish the following language together with the alternatives for comment:

The task force voted to adopt changes to Rule 4-7.7 regarding review of advertisements. The task force rejected two additional alternatives proposing prior review of advertisements. At the request of The Florida Bar Board of

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Governors and by vote of 8-7, the task force publishes those two additional alternatives addressing prior review of advertisements for comments by bar members. The task force has not considered the effect the adoption of the two additional alternatives might have on other proposed changes to the attorney advertising rules.

3. The meeting was adjourned.

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THE FLORIDA BAR ADVERTISING TASK FORCE 2004

MINUTES

January 20, 2005 9:00 a.m. until 4:00 p.m.

Hyatt Regency Miami, Florida

Chair Manuel R. Morales, Jr. presided over the meeting. Thirteen members attended: Bain Bales Bogan Curtis Ebbets

Huang Lewis Meador Morales O’Keefe

Sellers Wagner Willard

President Kelly Overstreet Johnson, President-elect Alan B. Bookman, Executive Director John F. Harkness, Jr., and staff members John Anthony Boggs, Mary Ellen Bateman, and Elizabeth Clark Tarbert also attended the meeting. The committee took the following actions:

1. Approved the minutes of the September 10, 2004 and November 1, 2004 meetings.

2. Heard presentations to the Advertising Task Force 2004 by Florida Bar members and other interested persons.

A. Mr. Peter Aiken stated that he has been a Florida Bar member for 34 years and practiced both before and after lawyer advertising. He stated that there is an enormous difference between civil and criminal litigation. The criminal defendant does not have a choice whether to engage in the litigation – the litigation has been commenced. There is also a difference in the stakes involved and the standard of proof. Any attorney who is not actively investigating within the first 30 days is not adequately representing the client. As an example, he was able to convince a state attorney to drop or reduce charges, agree to diversion or drug court in many cases. There is no good logical argument to support extending the 30 day rule to criminal cases. Direct mail is the only way young practitioners have to generate business, and competition is good for clients. The advice of rights that police give to arrested persons is a fraction of the rights that the criminal defendant has. In court appearances, often 300 criminal defendants appear, and 250 of those will likely be unrepresented. If a public defender is appointed, that person may get 15-20 seconds of the public defender’s time, because of the volume of cases. Many offenses may be enhanced: they can be charged as felonies or have enhanced penalties with subsequent offenses. Whether the prospective client hires Mr. Aiken or not, the letter he sends provides them with sound legal advice and he provides an initial consultation at no charge. The letter is required to be stamped “advertisement” under the current rules, and recipients do not have to open the letter. There is therefore no

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downside. Task force member Rush was quoted as stating that criminal defendants are vulnerable. Mr. Aiken agrees they are vulnerable, but they need good timely legal advice.

B. Mr. Eiman Sharmin stated that he is a criminal and traffic defense lawyer from West Palm Beach. He read in the August 15 issue of the News that task force members questioned whether direct mail letters assist the recipient. The current rules require lawyers to list their qualifications in the direct. Other media do not. Direct mail gives the recipient the ability to compare qualifications of the sending lawyers. A criminal defendant has difficulty choosing a lawyer through the yellow pages or by listening to radio advertisements. With direct mail, the recipient has the ability to review lawyers’ credentials in the privacy of the person’s own home. Task force member Rush was quoted as stating that nothing can happen within 30 days that cannot be undone. However, in DUI cases, an administrative hearing must be requested within 10 days or the criminal defendant has no right to contest the driver’s license suspension. There is no remedy if that deadline is missed. Traffic tickets have similar time limitations. The Supreme Court has stated that speech can be regulated, but not in a way that eliminates the speech entirely. With traffic tickets, speech would be eliminated if lawyers cannot advertise within 30 days. It is vital to send letters within 30 days of a traffic ticket’s receipt so that defendants know their options before they are time barred from using those options. In contrast, civil plaintiffs have a two year statute of limitations. There is a segment in the market of criminal defendants of those who do not qualify for the pubic defender’s office, but also cannot afford to hire a lawyer who has to absorb yellow pages marketing costs. The proposed regulation would hurt the public, and young attorneys, and would hurt competition, which improves quality and drives down prices.

C. President-elect Alan Bookman thanked the task force members for their hard work. He encouraged task force members to look seriously at requiring the home pages to be filed for review and comply with substantive advertising regulations. He also asked that task force members reconsider the definition of lawyer referral services, mentioning that The Fund’s educational program had been found to fall within the definition, which he believes do not fall within the definition as commonly understood to mean pay to play. He pointed out the electronic communication of task force member Hammond, who proposed an alternative definition.

D. Mr. Albert Quirantes stated that advertisements provide free information to the public. Driving and safety schools send direct mail freely. He personally has used direct mail for 16 years and has received nothing but positive responses from recipients. He has always submitted his advertisements for approval prior to sending them. Direct mail is critical in promoting the provision of information to a diverse population. Lawyers send direct mail advertisements in English, Spanish, Creole, and provide information that speakers of other languages do not receive from the government. For example, traffic tickets are printed with information that is only in English. Traffic ticket recipients do not understand that they have only 10 days to ask for a hearing. Often, ticket recipients ask for information from the Department of Motor Vehicles. Instead of setting the hearing to contest the ticket, the DMV gives the person a form to apply for a work

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permit. The person does not understand the difference between contesting the ticket and requesting a hardship license. The forms are available at the DMV are available only in English. Mr. Quirantes requests formal hearings on behalf of traffic ticket recipients for free, and sends his letters in English and Spanish.

E. Mr. Carlos Gonzalez stated that he practices criminal law in Miami and is a former prosecutor. His family members are day laborers and his father is a convicted felon. He has seen a difference when a criminal defendant receives a letter within 30 days. He has been able to persuade the state to change its filing decision within 30 days, for example, no bond decisions and lesser charges. Not receiving information can cause irreparable damage: being jailed and not released cannot be remedied. State attorneys take advantage of unrepresented criminal defendants. Many criminal defendants do not understand that they can afford to hire an attorney and lawyers’ ability to help will be limited or ended if criminal defendants do not have the ability to receive information within 30 days. In Dade, fines go up 40 percent if the person does not respond within 30 days, because they are referred to collection.

F. Mr. Jonathan M. Rowe stated that he practices criminal and traffic defense in Nassau, St. John and Duval counties. Mr. Rowe stated that many times, video tapes are made at book-in, and the tapes are kept for only 72 hours. 911 tapes are only kept for a short period of time, then destroyed. The tapes may be key to the case, and criminal defendants do not know to request copies. With proper and quick investigation, cases are often dismissed, reduced, or diverted to a pre-trial intervention program. Additionally, clients may receive the benefit of a price reduction for cases handled at volume, for example, in traffic ticket cases. Direct mail is highly reviewable.

Task force member Sellers entered the meeting.

Mr. Rowe has never had anyone complain about his direct mail letters, and many people have thanked him. Direct mail gives defendants the opportunity to hire a lawyer at a decent price. Often when he receives calls from defendants located outside his geographic area, he advises them to wait to receive direct mail letters because the advertising lawyers will be familiar with the area of practice, the courts, and will provide representation at a reasonable price. He was able to relocate to another geographic area in Florida because he could develop a new client base quickly through direct mail.

G. Mr. Jeffery N. Ivashuk stated that he practices criminal defense and personal injury in Miami-Dade. He is in favor of the 30 day rule in personal injury cases, because it is intrusive and distasteful. The Went For It case discusses The Florida Bar’s intensive study of the invasion of privacy caused by direct mail in personal injury cases, obtaining input from Florida residents. That study does not exist as to direct mail in criminal cases. There have been no complaints to the bar, no surveys performed, nor public hearings on the issue. What must be demonstrated is that harm is real and restrictions will alleviate those harms. Others today have talked about the benefits of direct mail in criminal and traffic cases. By contrast, no one could point to any benefit in receiving direct mail in personal injury cases within 30 days. He hopes that there is no hidden agenda to generate

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revenue that is lost by effective ticket defense representation, where tickets are dismissed or fines reduced. There are serious economic consequences to people who lose their drivers licenses because they do not know to request a hearing. Records and tapes are not kept permanently, so evidence is lost. Those who are of low economic status or with language issues will be disproportionately affected. He has never received a complaint regarding the direct mail he sends, and he is thanked weekly.

H. Mr. Charles Barnard stated that he practices criminal defense, primarily DUI and misdemeanors, in Ft. Lauderdale. Criminal defendants who are in jail particularly need representation. He includes a lot of information in his direct mail, including step-by-step instructions on what to do if a person misses an important deadline. If there is a legitimate reason to miss the deadline, such as being a non-English speaker or being in custody, Mr. Barnard can prepare an affidavit for the person and often obtain a belated hearing. Many do not understand that the DUI ticket itself acts as a driver’s license for 10 days. He has been told that he should sell his direct mail letter because it contains so much helpful information. Evidence can be destroyed, for example, radio transmissions are taped. In domestic violence cases, defendants often receive a summons rather than being arrested. The person does not even necessarily realize that he or she must go to court.

I. Mr. Eric Weingard stated that he is a criminal defense attorney with an engineering degree, admitted to the New York and New Jersey bars in addition to Florida. He sits on a grievance committee. The comment to Rule 4-7.4 states that direct mail has less potential for abuse and overreaching than direct solicitation. He stated that he is concerned regarding alleged connections between bail bonds businesses and attorneys. People who receive direct mail learn that other attorneys are interested in handling their cases and do not feel compelled to go to a lawyer recommended by a bail bonds company. Mr. Weingard was a state attorney for 3 years. The first 30 days are critical to a criminal case. 95% of clients do not claim innocence, but for 100% of those who do, Mr. Weingard has obtained a dismissal of their cases. If a defendant is wrongly accused of a crime, that person wants the case investigated within the first 30 days. AT early stages, it is less expensive for both the individual and the state to dispose of the case. The defendant is not like a victim of an accident. Although there is emotion when a person gets arrested, it is different in kind from an accident victim. An accident victim is injured and can heal over time, while a criminal defendant’s emotions are embarrassment and shame. A criminal defendant cannot obtain referrals from friends or family. Direct mail shows that lawyers are interested in the person’s case and can lessen the person’s embarrassment.

J. Mr. Michael Faehner stated that he is the president of the Young Lawyers Division. He does not practice criminal law, but speaks on behalf of the 20,000 young lawyers of Florida. His only concern is the possible extension of the 30 day rule to criminal cases. He has spoken to many former prosecutors and public defenders and is concerned the extension will cause more chaos than fix any specific problem. His former firm used direct mail and never received a complaint about it. The firm also sent direct mail in workers compensation cases. An extension of the rule could affect the market

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dramatically, changing the cost of legal services. Additionally, the system may become overburdened with unrepresented criminal defendants, burdening the state attorneys, public defenders, and judges. The system demands efficiency, fairness and justice. The direct mail letters Mr. Faehner has seen regarding criminal matters provides more information than others he has seen in workers compensation and eminent domain.

K. Mr. Terry Richard stated that he does computer work and marketing for attorney Charles Barnard. He speaks from the consumer perspective. The yellow pages directory does not provide qualifications or even areas of practice in many instances. When Mr. Richard’s wife received a traffic ticket, every direct mail piece she received provided vital information. The lawyer he works for has an over 100 page book on DUI . Twelve thousand people in Broward are arrested for DUI. 1.2% of those arrested did not live in the state. Without direct mail, it would be impossible for those people to hire an attorney. The direct results of extending the 30 day rule will be to harm young lawyers who cannot afford traditional advertising, and whoever has the most money to advertise will get the cases. Price is not always the most important factor in hiring an attorney, and direct mail provides information about a lawyer’s qualifications. That same information cannot be obtained from the newspaper, television or radio.

L. Ms. Katrina Barnard stated that she is not a lawyer, but is a client. She was arrested for DUI in 2001. She is not a citizen and does not understand the legal system. She hired a lawyer who did not have time to explain matters to her. She received direct mail letters that provided a lot of information to her at a time that she needed it. She made an appointment with a lawyer who would consult with her on Saturday, and that attorney helped her through the case. In response to a question from task force member Bogan, Ms. Barnard responded that she received over one hundred direct mail letters.

M. Mr. Jason Diamond stated that his law firm practices traffic ticket defense. When a person is pulled over, the officer provides a pamphlet with three options: pay the ticket and have points assessed against the driver’s license, go to traffic school or go to court. Many recipients of direct mail have informed Mr. Diamond that they did not know they had the option of fighting the ticket or hiring a lawyer to go to court for them. If lawyers are prohibited from sending direct mail within the first 30 days after receiving a ticket, defendants will not know they can hire a lawyer to represent them in court. Many criminal matters are handled by notices to appear rather than arrests, and convicted persons have no idea they have criminal records because they were never arrested.

N. Mr. Mark Milrot stated that he practices traffic and criminal traffic defense in Dade and Broward. He stated that proponents of the extension raised the issue of vulnerability of those arrested. The first 30 days is crucial to investigate and preserve evidence in a case. No defendant is vulnerable in the sense of an injured person. Many are not savvy about hiring a lawyer, and direct mail provides an opportunity to find experienced lawyers and compare qualifications. In direct mail, there is no disclosure of the type of case on the outside of the letter, as required by bar rules.

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3. President Kelly Overstreet Johnson commended the task force members for their work and presented them with certificates of merit.

4. Discussed written comments by Florida Bar members and other interested persons.

5. Discussed the draft rules.

A. Selected alternatives from prior meetings:

1) Rule 4-7.2(b)(1)(J). Task force member Wagner made a motion to strike the language “is exempt from the filing and review requirement and,” at lines 111 through 112, because it is redundant and addresses the concept of exemption from filing, which properly appears in Rule 4-7.8. The motion was seconded by task force member Lewis. Task force member Curtis spoke in favor of the motion, stating that the concept appears only in 4-7.2(b) and not in 4-7.2(a) or (c) and is properly a concept in Rule 4-7.8. Committee members Bales and Bain spoke against the motion, stating that the language is redundant, but helpful to bar members in providing additional information. The motion failed.

Task force member Ebbets made a motion to strike proposed subdivision (j) and instead insert proposed subdivision (b)(3) that would state “Public Service Announcements. A lawyer may be listed as a sponsor of a public service, charitable, civic, or community program or event as long as the information about the lawyer or law firm is limited to the permissible content set forth in subdivision (b)(1) of this rule. The motion was seconded and passed.

Task force member Wagner made a motion to delete the language “in any public media” on lines 109-110. The motion was not seconded.

2) Rule 4-7.4(b)(1)(A) & comment [lines 696-741]. Task force member Wagner made a motion, seconded by task force member Bogan to adopt alternative one (to leave the rule as is). The motion passed unanimously.

B. Considered new issues raised by comments:

1) Rule 4-7.1(b) and (c). Considered a suggestion by a Florida Bar member to modify these provisions to indicate that the rules do not apply to websites of out-of-state lawyers. The task force took no action regarding this suggestion in light of the task force’s recommendation to exempt all websites from the attorney advertising rules.

2) Rule 4-7.2(b)(1)(M). Considered a suggestion by a Florida Bar member that the permissible content of advertisements be amended to

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include a photograph of a lawyer or lawyers using as a background “any location in or in front of the firm’s offices.” The task force took no action regarding this proposal.

3) Rule 4-7.2(c)(1)(G). Considered a suggestion by a Florida Bar member to allow advertising past results with the disclaimer that “all cases are based on their individual merits and therefore past successes cannot guarantee future results.” The task force took no action regarding this proposal.

4) Rule 4-7.2(c)(1)(K). Considered a suggestion by a Florida Bar member to delete the prohibition against using testimonials. Task force member Huang made a motion to delete the prohibition against using testimonials. The motion was not seconded.

5) Rule 4-7.2(c)(3). Considered a suggestion by a Florida Bar member to delete references to the word “manipulative.” Task force member Wagner made a motion to delete all reference to the word “manipulative” in the attorney advertising rules because it is incapable of definition, too subjective, and too difficult to enforce. Task force member Bales seconded the motion, stating that “manipulative” is like the word “unfair” that the task force already voted to delete from the rules: the bar cannot regulate bad taste or dignity and should not have rules unless there are clear reasons for having them. Task force member Ebbets stated his belief that the rule was adopted to eliminate advertisements appealing purely to the emotions. Task force member Lewis commented that there needs to be some rule to address the issue. Task force member Bogan stated that if the word “manipulative” is deleted, the bar runs the risk of significantly lowering the standard for attorney advertising. Task force member Sellers commented that he agreed with the motion’s proponents, but could not support the motion in the absence of a viable alternative. The motion failed, 6-7.

Task force member Curtis left the meeting.

6) Rule 4-7.4(b)(2)(E). Considered a suggestion from a Florida Bar member that the statement of qualifications be required for individual lawyers as opposed to aggregated for firms. The task force took no action regarding this proposal.

7) Rule 4-7.4 comment [lines 751-754]. Considered a suggestion from a Florida Bar member to use the following standard in explaining the sender’s source of information: “does the explanation allow the recipient to locate for him or herself the information that prompted the communication from the lawyer?” Task force member Bogan made a

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motion to adopt the bar member’s suggestion, which was seconded by task force member Bales. The motion passed.

8) Rule 4-7.6(b). Considered comments by Florida Bar members and the Citizens Forum that they object to the proposed exemption of websites from the attorney advertising rules; considered a suggestion by one Florida Bar member that the attorney advertising rules, including filing, be applied to homepages only; considered a suggestion by another Florida Bar member to deal with the issue of advisory opinions on websites if websites are exempted from the advertising rules Task force member Wagner commented that it is illogical to treat websites and yellow pages differently. Task force member Sellers responded that the difference is that the yellow pages is delivered to everyone’s home, whereas computers require active use of a computer, searching for topics that would prompt a lawyer’s website to be prompted, then choosing to go to that website. Task force member Sellers made a motion to leave the task force recommendation as is, with no application of the attorney advertising rules to websites. The motion was seconded by task force member Lewis. Task force member Wagner offered an amendment to the motion that websites, direct mail, and print advertisements be made subject to the same regulation. Task force member Sellers did not accept the friendly amendment. The motion passed.

A motion was made, seconded, and passed to direct staff to draft changes to Rule 4-7.7 that The Florida Bar will not review information on request, because the attorney advertising rules are not applicable.

9) Rule 4-7.7. Considered a suggestion by a Florida Bar member that the rules require referral to Lawyer Regulation of all lawyers whose advertisements do not comply with the rules if the advertisement is being run. Task force member Bales and Lewis spoke against the concept, stating that it would remove bar members’ incentive to file advertisements at all. The task force took no action regarding this proposal.

10) Rule 4-7.10. Considered a suggestion by a Florida Bar member that there be a requirement that sole proprietors must be listed in ads as such rather than as a firm. The task force took no action regarding this proposal.

11) Rule 4-7.10. Considered a suggestion by a Florida Bar member that there be a prohibition against the use of a trade name unless the full name(s) of all lawyer/owner(s) are listed in the ad. The task force took no action regarding this proposal.

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12) Considered a suggestion by a Florida Bar member that lawyers should be required to show proof of malpractice coverage in order to advertise. The task force took no action regarding this proposal.

13) Considered a suggestion by a Florida Bar member that a disclosure should be required that cases may be handled by a subcontractor. The task force took no action regarding this proposal.

14) Considered a suggestion by a marketing consultant that Florida Bar members provide an educational component in their advertising. The task force took no action regarding this proposal.

C. Reconsidered rules drafted by task force at request of commentors:

1) Rule 4-7.2(a)(2). Considered an objection of 2 Florida Bar members to proposal to delete the requirement that appropriate qualifying language appear with a local telephone number where the lawyer has no bona fide office at that location. The task force took no action regarding this objection.

2) Rule 4-7.2(b)(5). Considered a suggestion by a Florida Bar member to reconsider deleting prohibition against advertising for cases in areas in which the lawyer does not currently practice. The task force took no action regarding this suggestion.

3) Rule 4-7.2(c)(8). Considered a suggestion by several Florida Bar members to reconsider deleting the requirement that intent to refer cases to another lawyer be disclosed. The task force took no action regarding this suggestion.

4) Rule 4-7.2(c)(10). Considered a suggestion by Lawyer Regulation to change “clearly legible” to 10 point contrasting font or the like. The task force took no action regarding this suggestion.

5) Rule 4-7.4 comment [lines 673-693]. Considered an objection from a Florida Bar member that the definition of “prior professional relationship” is too narrow. Task force member Wagner made a motion to strike the definition of “prior professional relationship” in the comment and change “prior professional relationship” to “prior lawyer-client relationship” in the rule. The motion was not seconded. The task force took no further action regarding this rule.

6) Rule 4-7.5. Considered a suggestion by a Florida Bar member that The Florida Bar do something about the proliferation of television advertising. The task force took no action regarding this suggestion.

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7) Rule 4-7.5(b)(1)(B). Considered an objection from a Florida Bar member to deleting requirement that use of a nonlawyer spokesperson be affirmatively disclosed in the ad. The task force took no action regarding this suggestion.

8) Rule 4-7.7. Considered the objection of two Florida Bar members to prior review of advertisements drafted at the request of the board of governors. The task force took no action, letting its prior recommendation stand.

5. The chair opened the floor for discussion of other items at the request of task force members. Task force member Wagner made a motion to adopt his proposal on page 167e of the agenda backup that a lawyer cannot provide information to anyone, including prospective, current or former clients, that involves dishonesty, fraud, deceit, or misrepresentation. The motion was not seconded.

6. Task force member Wagner made a motion that the words “at Florida residents” be changed to “involving Florida legal matters” in Rule 4-7.1(c)(2). The motion was seconded and passed, subject to approval by the Unlicensed Practice of Law Director. If the Unlicensed Practice of Law Director saw problems with the proposed change, the committee directed staff to leave the language as previously approved.

7. Task force member Wagner made a motion to add the language “the lawyer’s own” before “foreign language ability” in Rule 4-7.2(b)(1)(E), which was seconded by Task force member Ebbets. Task force member Bain commented that the proposal would keep lawyers from providing useful information to prospective clients: that someone at the firm has foreign language ability. The motion failed.

8. Task force member Wagner made a motion to strike (E) from 4-7.4(b)(2), deleting the requirement that sample contracts enclosed with direct mail letters be marked “SAMPLE” and “Do not sign.” The motion was not seconded.

9. Task force member Wagner made a motion to require that direct mail be marked “Lawyer Advertisement” as opposed to “advertisement” in Rule 4-7.4(b)(2)(B). The motion was not seconded.

10. Task force member Wagner made a motion to delete the language “recognizable to the public” in Rule 4-7.5(b)(1)(B). The motion was seconded by Task force member Sellers. The motion failed.

Task force member Bales left the meeting.

11. Task force member Wagner made a motion to strike “states” and insert “begins with” before the language “legal advertisement” and to place the words “legal advertisement” in all capital letters in Rule 4-7.6(c)(3). Task force member Lewis seconded the motion. The motion passed.

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12. Task force member Wagner made a motion to limit information about the lawyer in public service announcements to name and city as in the current rule in Rule 4-7.8(b). The motion was not seconded.

Task force member Curtis re-entered the meeting.

13. Task force member Sellers made a motion to make the titles to subdivisions (a), (b) and (c) in Rule 4-7.2 consistent, by changing “information” to “content of advertisements and unsolicited written communications” in subdivision (a) and by adding “and unsolicited written communications” to the end of the title in subdivision (c). The motion was seconded and passed.

14. Task force member Bogan made a motion to add “Prohibitions and” to the beginning of the title of Rule 4-7.2(c). The motion was seconded and passed.

15. Task force chair Manuel R. Morales, Jr. thanked the members of the task force for their hard work.

16. The meeting was adjourned.

APPENDIX B

APRIL 2004 LETTER TO CHAIRS OF BAR COMMITTEES AND SECTIONS

AND PRESIDENTS OF VOLUNTARY BAR ASSOCIATIONS

B-1

April 27, 2004 [Title] [Name of Section/Committee Chair or Voluntary Bar President] [Address of Section/Committee Chair or Voluntary Bar President] Re: Request for Comments on Attorney Advertising Rules Dear [Title] [Last name of Section/Committee Chair or Voluntary Bar President]: The Advertising Task Force 2004 requests your assistance and comments on the Rules Regulating The Florida Bar addressing attorney advertising, Rules 4-7.1 through 4-7.11. The task force has been charged with reviewing the attorney advertising rules and recommending changes to the rules if deemed necessary, including any changes to clarify the meaning of the rules and provide notice to Florida Bar members of the rules= requirements. Included within this charge is an analysis of the advertising filing and review requirement, including consideration of mandatory review prior to dissemination of advertisements. The task force is expected to make a final report to The Florida Bar Board of Governors in year 2004-05. The task force is interested in receiving comments from interested persons on the task force=s charge. The task force is particularly interested in hearing any suggestions or proposals for improving the existing rules. The task force has not drafted any proposed changes to the rules at this time. As the task force examines the rules, further information will be posted on the task force=s work on the bar=s website at www.flabar.org, under organization, committees, special. The task force welcomes comments from any group, organization or individual. Please disseminate this information to your members so that they may comment, whether or not you decide to respond as an organization. The task force strongly suggests that interested persons contact Elizabeth Clark Tarbert, Ethics Counsel, at the address above to indicate their intent to address the committee so that sufficient time to hear all comments will be ensured. The task force urges interested persons also to provide written comments. The task force will meet to hear from interested persons and review any written comments at its meeting at 10 a.m. on Thursday, June 24, 2004 at the Boca Raton Resort & Club in conjunction with the bar=s Annual Meeting. So that the committee members will have adequate time to review the comments prior to the meeting, any written comments must be received no later than May 28, 2004. Thank you for your assistance with the task force=s work. Sincerely, Manuel R. Morales, Jr., Chair

APPENDIX C

SUMMARY OF COMMENTS RECEIVED FOR JUNE 2004 MEETING

C-1

ADVERTISING TASK FORCE 2004 Summary of Comments

June 3, 2004

NAME ORGANIZATION COMMENTS

Ban Attorney Advertising

Leonard Frishman TFB member All attorney advertising should be banned

Norman S. Cannella TFB member Attorney advertising should never have been allowed

James H. Carroll TFB member All attorney advertising should be banned or at least limited to yellow pages only

Patricia S. Sechan TFB member attorney advertising should be banned, especially t.v.

H. Clifford Lee TFB member Good lawyers do not need to advertise; no public service is done by ads

Gregory M. Wagner TFB member Advertising is demeaning to the profession. TFB should ban t.v., radio, billboard and newspaper ads, should ban trade names, should limit yellow pages ads to business card size, prohibit direct mail in criminal cases, and prohibit lawyers from advertising in judicial circuits where they have no office.

Ad Rules Should Be Stricter

Stephen C. Booth TFB member Ads should be regulated as much as possible

Michael H. Lambert TFB member Attorney advertising is demeaning and bar rules should be more restrictive

William H. Walker TFB member Advertising contributes to the public’s poor perception of lawyers, especially t.v. ads. TFB should regulate advertising as far as is constitutionally permissible.

Ad Rules Should Stay the Same

William H. Harrell TFB member The existing rules should not be changed

Franklin Prince TFB member Existing ad rules should not be changed

Robert E. Gordon TFB member Lawyer ads help lower socio-economic groups find lawyers; existing rules are adequate, but enforcement is inadequate

Specific Rules Changes Suggestions

Robert Stanton TFB member There is loophole in ad rules that permits lawyers who are guest speakers at seminars to not comply with rules in advertising for the seminar

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Wayne L. Thomas UPL Comm Attorneys should not be able to accept referrals from nonlawyers that arose through improper ads or solicitation

Donald A. Wich UPL Comm Lawyer referral services should be required to state that they are referral services

Donnie Murrell TFB member 1. Lawyers should not be able to advertise “combined” experience 2. Lawyers should not be able to advertise “former prosecutor, because it implies improper influence

Gregory M. Wagner TFB member Advertising is demeaning to the profession. TFB should ban t.v., radio, billboard and newspaper ads, should ban trade names, should limit yellow pages ads to business card size, prohibit direct mail in criminal cases, and prohibit lawyers from advertising in judicial circuits where they have no office.

Jeffrey M. Cohen BLSE Attorneys should be prohibited from using terms “practice limited to” a specific area unless the attorney is board certified in that area

Other

Mr./Ms. Blackmon works for attorney TFB should survey the public on the issue

Arthur N. Eggers TFB member TFB members should be surveyed on ad rules; in criminal arena, lawyers are violating rules

Michael G. Bass TFB member TFB enforcement of rules is inadequate

Bradley R. Stark TFB member House Bill 1357 on attorney advertising is bad

Phillip Buhler Pres., Jax Federal Bar

Declines to comment as an org., but has encouraged individual members of the Jacksonville Federal Bar to provide comments.

Karen R. Wasson TFB member House Bill 1357 to restrict attorney advertising under the guise of reducing frivolous lawsuits is irresponsible and without substance

Frank J. Benasutti TFB member Provides his qualifications

Carl Patterson Advertising Grievance Comm Public Member

Existing advertising rules are clear, but attorneys fail to follow. Attorneys who violate rules in yellow pages ads twice in 3 year period should be banned from advertising in yellow pages for 2 years. Attorneys with 2 ad violations within 5 years should be banned from advertising for 2 years. There should be an automatic fee for every advertising case in which probable cause is found.

APPENDIX D

OCTOBER 2004 LETTER ON INTERIM REPORT TO CHAIRS OF BAR COMMITTEES AND SECTIONS AND PRESIDENTS OF

VOLUNTARY BAR ASSOCIATIONS

D-1

October 1, 2004 [Title] [Name of Section/Committee Chair or Voluntary Bar President] [Address of Section/Committee Chair or Voluntary Bar President] Re: Request for Comments on Attorney Advertising Rules Dear [Title] [Last name of Section/Committee Chair or Voluntary Bar President]: The Advertising Task Force 2004 requests your comments on the attorney advertising rules, 4-7.1 through 4-7.11, Rules Regulating The Florida Bar. We have been charged with recommending changes to clarify the meaning of these rules and provide notice to Florida Bar members of the rules= requirements. We will make a final report to The Florida Bar Board of Governors in the spring of 2005. Enclosed is an executive summary of the draft changes to the attorney advertising rules. The full text of the draft is posted in legislative format on the bar=s website at www.flabar.org under Organization, Committees, Special, Advertising Task Force. The task force is seeking comments from interested persons before the it makes final recommendations to the board of governors. We welcome comments from any group, organization or individual. Please disseminate this information to your members so that they may comment, whether or not you decide to respond as an organization. The task force requests that interested persons provide written comments to Elizabeth Clark Tarbert, Ethics Counsel at the address above or by e-mail to eto@flabar.org no later than December 31, 2004. The task force strongly suggests that persons interested in addressing the task force in person contact Ms. Tarbert to indicate their intent so that sufficient time can be scheduled. We will meet for this purpose at 9:00 a.m. on Thursday, January 20, 2005 at the Hyatt Regency in Miami in conjunction with the bar=s Midyear Meeting. Thank you for your assistance with our work. Sincerely, Manuel R. Morales, Jr., Chair

APPENDIX E

SUMMARY OF COMMENTS ON INTERIM REPORT

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ADVERTISING TASK FORCE 2004 Summary of Comments

January 4, 2005

RULE COMMENTS NAME ORGANI-ZATION

4-7.1(b) & (c) modify proposal to indicate that the rules do not apply to websites of oos lawyers

Timothy P. Chinaris TFB member & former ethics counsel

4-7.1(h) supports change Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(a)(2) reconsider deleting requirement of qualifying language when no bona fide office exists with advertised local phone #

Kelly Overstreet Johnson TFB President

opposes change b/c clients have legitimate interest in knowing whether lawyer has local office

Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(b)(1)(J) Alt. One

supports change re public service announcements

Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(b)(1)(M) Alt. One

supports change and suggests adding as permissible content the lawyer in front of “any location in or in front of the firm’s offices”

Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(b)(5) [current rule #]

reconsider deleting prohibition v. advertising for cases in areas not currently practicing

Kelly Overstreet Johnson TFB President

4-7.2(c)(1) supports deleting “unfair” as too subjective

Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(c)(1)(G) supports deleting “unjustified expectations” but suggests that ban on past results be modified to be permitted with a disclaimer

Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(c)(1)(K) suggests deleting prohibition on testimonials

Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(c)(3) suggests deleting references to “manipulative” on due process concerns

Timothy P. Chinaris TFB member & former ethics counsel

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4-7.2(c)(8) [current rule #]

reconsider deleting disclosure requirement on intent to refer cases to another lawyer

Kelly Overstreet Johnson TFB President

opposes deleting prohibition of intent to refer cases to another lawyer

Andrew Needle TFB member and former board member

opposes deleting prohibition of intent to refer cases to another lawyer

Jack Scarola TFB member

supports deleting prohibition of intent to refer cases

Timothy P. Chinaris TFB member & former ethics counsel

4-7.2(c)(10) “clearly legible” may be unenforceable; consider 10 point contrasting font instead

Ken Marvin Director, Lawyer Regulation

4-7.3(b) supports deleting hiring disclosure

Timothy P. Chinaris TFB member & former ethics counsel

4-7.4(b)(1)(A) [30 day rule]

supports extending 30 day rule to criminal cases

Thomas E.Cazel TFB member

Ditto Richard D. Kibbey TFB member

Ditto William Pontrello TFB member

Ditto Paul D. Sullivan TFB member

Ditto Citizens Forum Board-appointed committee

suggests extending 30 day rule to family law cases

Charles Scott TFB member

Ditto Citizens Forum Board-appointed committee

opposes extending 30 day rule to criminal cases

Peter D. Aiken TFB member

Ditto Jeffrey D. Arrowood TFB member

Ditto Tracy S. Carlin TFB member

Ditto Timothy P. Chinaris TFB member & former ethics counsel

Ditto Gail Conolly TFB member

Ditto Mark C. De Sisto TFB member

Ditto Dario D. Diaz TFB member

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Ditto Robert D. Eckard TFB member

Ditto Robert E. Eddington TFB member

Ditto Michael Faehner President, Young Lawyers Division

Ditto Charles D. Fantl TFB member

Ditto H. Scott Fingerhut Miami Chapter, Florida Association of Criminal Defense Lawyers

Ditto Lloyd H. Golburgh TFB member

Ditto Harvey Greenberg TFB member

Ditto Randell Hafner TFB member

Ditto J. Larry Hart TFB member

Ditto J. Kevin Hayslett TFB member

Ditto Rebecca M. Hodge TFB member

Ditto Richard E. Hornsby TFB member

Ditto Kendall L. Horween TFB member

Ditto Brenda Hyre unknown

Ditto Greg Johnson TFB member

Ditto Joseph R. Johnson TFB member

Ditto Jonathan Kasen/Scott Levine

TFB members

Ditto Tom Kurrus President, Florida Association of Criminal Defense Lawyers

Ditto Louis N. Larsen TFB member

Ditto Paul A. Meissner TFB member

Ditto Scott D. Miller TFB member

Ditto Mark B. Milrot TFB member

E-4

Ditto Christopher J. O’Toole TFB member

Ditto Parks & Braxton, P.A. TFB members

Ditto John H. Power TFB member

Ditto Albert M. Quirantes/Carlos Pelayo Gonzalez

TFB members

Ditto Cary F. Rada TFB member

Ditto Frank Russo TFB member

Ditto Charles D. Scott TFB member

Ditto Eiman Sharmin TFB member

Ditto Robert S. Sombathy TFB member

Ditto W. Grey Tesh TFB member

Ditto Thomas G. Tripp TFB member

Ditto Eric H. Weingard TFB member

opposes extending 30 day rule to civil traffic cases

Timothy P. Chinaris TFB member & former ethics counsel

Ditto Jason A. Diamond TFB member

Ditto Harvey Greenberg TFB member

Ditto Mark B. Milrot TFB member

Ditto Albert M. Quirantes/Carlos Pelayo Gonzalez

TFB members

Ditto Ronald S. Schneider TFB member

4-7.4(b)(1)(E) supports deleting word “unfair”

Timothy P. Chinaris TFB member & former ethics counsel

4-7.4(b)(2)(E) qualifications should be individually listed for each attorney, not aggregated for law firm

Greg Chumbley TFB member

4-7.4 comment, l. 673-693

opposes definition of prior professional relationship as too narrow

Timothy P. Chinaris TFB member & former ethics counsel

E-5

4-7.4 comment, l. 751-754

opposes change stating that “public records” or “court records” are insufficient, which in some cases may be. Should instead state standard is “does the explanation allow the recipient to locate for himself or herself the information that prompted the communication from the lawyer?”

Timothy P. Chinaris TFB member & former ethics counsel

4-7.5(b)(1)(B) Supports change that allows disclosures to be oral or written. Opposes change deleting requirement of disclosure in cases where it is clear from context that nonlawyer is spokesperson

Timothy P. Chinaris TFB member & former ethics counsel

4-7.5 TFB should stop the proliferation of t.v. ads

Norman S. Pallot TFB member

4-7.6(b) reconsider deleting requirement that websites disclose jurisdictions where licensed and bona fide offices

Kelly Overstreet Johnson TFB President

consider requiring that home pages of websites be filed for review and follow ad rules, but remainder of website be exempt from rules

Alan B. Bookman TFB President-elect

advertising rules should apply to websites

Citizens Forum Board-appointed committee

4-7.6/4-7.7 Address issue of whether staff will provide an advisory opinion on website compliance

Timothy P. Chinaris TFB member & former ethics counsel

4-7.7 consider adding requirement that all lawyers whose ads do not comply will be referred to lawyer regulation

Kelly Overstreet Johnson TFB President

opposes prior review Timothy P. Chinaris TFB member & former ethics counsel

opposes prior review J. Tuthill TFB member

opposes prior review Matt Weinstein TFB member

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4-7.7(f) & comment

supports change that TFB opinion is binding

Timothy P. Chinaris TFB member & former ethics counsel

4-7.10 require that sole proprietors be listed as such rather than firms

Greg Chumbley TFB member

require that fictitious names be banned unless full name of attorney(s) is made in the ad

Greg Chumbley TFB member

None consider adding requirement that lawyers show proof of malpractice coverage if they advertise

Michael P. Falkowski TRB member

None require disclaimer on all ads that case may be handled by subcontractor

Greg Chumbley TFB member

None Florida lawyers should educate consumers more in their ads

Jim Fortson marketing consultant

None Discipline for ad violations should be swift and severe

Citizens Forum Board-appointed committee

None ad regulations should be simplified

Citizens Forum Board-appointed committee

None consider spot audits instead of a filing requirement

Citizens Forum Board-appointed committee

None consider adding questions on attorney advertising regulation to the bar exam

Citizens Forum Board-appointed committee

None consider initiating discussion with other professions such as accounting regarding professionalism in advertising

Citizens Forum Board-appointed committee

None consider a certificate of compliance instead of filing requirement

Citizens Forum Board-appointed committee

APPENDIX F

ADVERTISING TASK FORCE 2004 RECOMMENDATIONS IN LEGISLATIVE FORMAT

F-1

4-7. INFORMATION ABOUT LEGAL SERVICES

RULE 4-7.1 GENERAL

(a) Permissible Forms of Advertising. Subject to all the requirements set forth

in this subchapter 4-7, including the filing requirements of rule 4-7.7, a lawyer may

advertise services through public media, including but not limited to: print media, such

as a telephone directory, legal directory, newspaper or other periodical; outdoor

advertising, such as billboards and other signs; radio, television, and computer-accessed

communications; recorded messages the public may access by dialing a telephone

number; and written communication in accordance with rule 4-7.4.

(b) Advertisements Disseminated in Florida. Subchapter 4-7 shall apply to

lawyers admitted to practice law in Florida who solicit or advertise for legal employment

in Florida or who target solicitations or advertisements for legal employment at Florida

residents.

(c) Advertisements by Out of State Lawyers. Subchapter 4-7 shall apply to

lawyers admitted to practice law in jurisdictions other than Florida:

(1) who have established a regular and/or permanent presence in Florida

for the practice of law as authorized by other law; and

(2) who solicit or advertise for legal employment in Florida or who target

solicitations or advertisements for legal employment at Florida residents.

(bd) Advertisements Not Disseminated in Florida. These rulesSubchapter 4-7 shall

not apply to any advertisement broadcast or disseminated in another jurisdiction in which

the advertising lawyer is admitted if such advertisement complies with the rules

governing lawyer advertising in that jurisdiction and is not intended for broadcast or

dissemination within the state of Florida.

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(e) Communications Between Lawyers. Subchapter 4-7 shall not apply to

communications between lawyers.

(f) Communications With Family Members. Subchapter 4-7 shall not apply to

communications between a lawyer and that lawyer’s own family members.

(g) Communications With Current and Former Clients. Subchapter 4-7 shall

not apply to communications between a lawyer and that lawyer’s own current and former

clients.

(h) Communications At a Prospective Client’s Request. Subchapter 4-7 shall

not apply to communications between a lawyer and a prospective client if made at the

request of that prospective client.

(i) Application of General Misconduct Rule. The general rule

prohibiting a lawyer from engaging in conduct involving dishonesty, deceit or

misrepresentation applies to all communications by a lawyer, whether or not subchapter

4-7 applies to that communication.

Comment

To assist the public in obtaining legal services, lawyers should be allowed to

make known their services not only through reputation but also through organized

information campaigns in the form of advertising. The public's need to know about legal

services can be fulfilled in part through advertising that provides the public with useful,

factual information about legal rights and needs and the availability and terms of legal

services from a particular lawyer or law firm. This need is particularly acute in the case

of persons of moderate means who have not made extensive use of legal services.

Nevertheless, certain types of advertising by lawyers create the risk of practices that are

misleading or overreaching and can create unwarranted expectations by persons untrained

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in the law. Such advertising can also adversely affect the public's confidence and trust in

our judicial system.

In order to balance the public's need for useful information, the state's need to

ensure a system by which justice will be administered fairly and properly, as well as the

state's need to regulate and monitor the advertising practices of lawyers, and a lawyer's

right to advertise the availability of the lawyer's services to the public, these rules permit

public dissemination of information concerning a lawyer's name or firm name, address,

and telephone number; the kinds of services the lawyer will undertake; the basis on which

the lawyer's fees are determined, including prices for specific services and payment and

credit arrangements; a lawyer's foreign language ability; names of references and, with

their consent, names of clients regularly represented; and other factual information that

might invite the attention of those seeking legal assistance.

Regardless of medium, a lawyer's advertisement should provide only useful,

factual information presented in a nonsensational manner. Advertisements utilizing

slogans or jingles, oversized electrical and neon signs, or sound trucks fail to meet these

standards and diminish public confidence in the legal system.

These rules do not prohibit communications authorized by law, such as notice to

members of a class in class action litigation.

These rules apply to advertisements and written communications directed at

prospective clients and concerning a lawyer's or law firm's availability to provide legal

services. These rules do not apply to communications between lawyers, including

brochures used for recruitment purposescommunications between lawyers and their own

family members, communications between lawyers and their own current and former

clients, or communications with a prospective client at that prospective client’s request.

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4-7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES

The following shall apply to any communication conveying information about a

lawyer’s or a law firm’s services except as provided in subdivisions (e) through (h) of

rule 4-7.1:

(a) Required InformationContent of Advertisements and Unsolicited Written

Communications.

(1) Name of Lawyer or Lawyer Referral Service. All advertisements and

written communications pursuant to these rules shall include the name of at least

1 lawyer or the lawyer referral service responsible for their content.

(2) Location of Practice. All advertisements and written communications

provided for under these rules shall disclose, by city or town, 1 or more bona fide

office locations of the lawyer or lawyers who will actually perform the services

advertised. If the office location is outside a city or town, the county in which the

office is located must be disclosed. A lawyer referral service shall disclose the

geographic area in which the lawyer practices when a referral is made. For the

purposes of this rule, a bona fide office is defined as a physical location

maintained by the lawyer or law firm where the lawyer or law firm reasonably

expects to furnish legal services in a substantial way on a regular and continuing

basis. If an advertisement or written communication lists a telephone number in

connection with a specified geographic area other than an area containing a bona

fide office, appropriate qualifying language must appear in the advertisement.

(b) Prohibited Statements and Information. Permissible Content of

Advertisements and Unsolicited Written Communications. If the content of an

advertisement in any public media or unsolicited written communication is limited to the

following information, the advertisement or unsolicited written communication is exempt

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from the filing and review requirement and, if true, shall be presumed not to be

misleading or deceptive:

(1) Lawyers and Law Firms:

(A) subject to the requirements of this rule and rule 4-7.9, the name

of the lawyer or law firm, a listing of lawyers associated with the firm, office locations

and parking arrangements, disability accommodations, telephone numbers, website

addresses, and electronic mail addresses, office and telephone service hours, and a

designation such as “attorney” or “law firm”;

(B) date of admission to The Florida Bar and any other bars, current

membership or positions held in The Florida Bar, its sections or committees, former

membership or positions held in The Florida Bar, its sections or committees, together

with dates of membership, former positions of employment held in the legal profession,

together with dates the positions were held, years of experience practicing law, number of

lawyers in the advertising law firm, and a listing of federal courts and jurisdictions other

than Florida where the lawyer is licensed to practice;

(C) technical and professional licenses granted by the state or other

recognized licensing authorities and educational degrees received, including dates and

institutions;

(D) military service, including branch and dates of service;

(E) foreign language ability;

(F) fields of law in which the lawyer practices, including official

certification logos, subject to the requirements of subdivision (c)(5) of this rule regarding

use of terms such as certified, specialist and expert;

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(G) prepaid or group legal service plans in which the lawyer

participates;

(H) acceptance of credit cards;

(I) fee for initial consultation and fee schedule, subject to the

requirements of subdivisions (c)(6) and (c)(7) of this rule regarding cost disclosures and

honoring advertised fees;

(J) common salutary language such as “best wishes,” “good luck,”

“happy holidays,” or “pleased to announce”;

(K) punctuation marks and common typographical marks;

(L) an illustration of the scales of justice not deceptively similar to

official certification logos or The Florida Bar logo, a gavel, or traditional renditions of

Lady Justice, 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), diploma(s), or a photograph of the lawyer or lawyers who are members of or

employed by the firm against a plain background consisting of a single solid color or a

plain unadorned set of law books; and

(2) Lawyer Referral Services. A lawyer referral service may advertise its

name, location, telephone number, the referral fee charged, its hours of operation, the

process by which referrals are made, the areas of law in which referrals are offered, the

geographic area in which the lawyers practice to whom those responding to the

advertisement will be referred, and, if applicable, its nonprofit status, its status as a

lawyer referral service approved by The Florida Bar, and the logo of its sponsoring bar

association.

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(3) Public Service Announcements. A lawyer or law firm may be listed as a

sponsor of a public service announcement or charitable, civic, or community program or

event as long as the information about the lawyer or law firm is limited to the permissible

content set forth in subdivision (b)(1) of this rule;

(c) Prohibitions and General Regulations Governing Content of

Advertisements and Unsolicited Written Communications.

(1) Statements About Legal Services. A lawyer shall not make or permit

to be made a false, misleading, or deceptive, or unfair communication about the

lawyer or the lawyer’s services. A communication violates this rule if it:

(A) contains a material misrepresentation of fact or law or omits a

fact necessary to make the statement considered as a whole not materially

misleading;

(B) is directly or impliedly false or misleading;

(C) is potentially false or misleading;

(D) fails to disclose material information necessary to prevent the

information supplied from being actually or potentially false or

misleading;

(E) is unsubstantiated in fact;

(F) is deceptive;

(BG) contains any reference to past successes or results obtained

or is otherwise likely to create an unjustified expectation about results the

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lawyer can achieve except as allowed in the rule regulating information

about a lawyer’s services provided upon request;

(H) guarantees results;

(CI) states or implies that the lawyer can achieve results by means

that violate the Rules of Professional Conduct or other law;

(DJ) compares the lawyer’s services with other lawyers’ services,

unless the comparison can be factually substantiated; or

(EK) contains a testimonial.

(2) Misleading or Deceptive Factual Statements. Any factual statement

contained in any advertisement or written communication or any information

furnished to a prospective client under this rule shall not:

(A) be directly or impliedly false or misleading;

(B) be potentially false or misleading;

(C) fail to disclose material information necessary to prevent the

information supplied from being actually or potentially false or

misleading;

(D) be unsubstantiated in fact; or

(E) be unfair or deceptive.

(32) Descriptive Statements. A lawyer shall not make statements

describing or characterizing the quality of the lawyer’s services in advertisements

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and unsolicited written communications; provided that this provision shall not

apply to information furnished to a prospective client at that person’s request or to

information supplied to existing clients.

(43) Prohibited Visual and Verbal Portrayal and Illustrations. VisualA

lawyer shall not include in any advertisement or unsolicited written

communication any visual or verbal descriptions, depictions, illustrations or

portrayals of persons, things, or events shall not bethat are deceptive, misleading,

or manipulative or likely to confuse the viewer.

(5) Advertising Areas of Practice. A lawyer or law firm shall not

advertise for legal employment in an area of practice in which the advertising

lawyer or law firm does not currently practice law.

(64) Stating or Implying Florida Bar Approval. A lawyer or law firm

shall not make any statement that directly or impliedly indicates that the

communication has received any kind of approval from The Florida Bar.

(c) General Regulations Governing Content of Advertisements.

(1) Use of Illustrations. Illustrations used in advertisements shall contain

no features that are likely to deceive, mislead, or confuse the viewer.

(2) Fields of Practice. Every advertisement and written communication

that indicates 1 or more areas of law in which the lawyer or law firm practices

shall conform to the requirements of subdivision (c)(3) of this rule.

(35) Communication of Fields of Practice. A lawyer may communicate

the fact that the lawyer does or does not practice in particular fields of law. A

lawyer shall not state or imply that the lawyer is “certified,” “board certified,” or a

“specialist” or an “expert” except as follows:

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(A) Florida Bar Certified Lawyers. A lawyer who complies with

the Florida certification plan as set forth in chapter 6, Rules Regulating

The Florida Bar, may inform the public and other lawyers of the lawyer’s

certified areas of legal practice. Such communications should identify

The Florida Bar as the certifying organization and may state that the

lawyer is “certified,” “board certified,” or a “specialist in (area of

certification)” or an “expert in (area of certification).”

(B) Lawyers Certified by Organizations Other Than The Florida

Bar or Another State Bar. A lawyer certified by an organization other than

The Florida Bar or another state bar may inform the public and other

lawyers of the lawyer’s certified area(s) of legal practice by stating that the

lawyer is “certified,” “board certified,” or a “specialist in (area of

certification)” or an “expert in (area of certification” if:

(i) the organization’s program has been accredited by The

Florida Bar as provided elsewhere in these Rules Regulating The

Florida Bar; and,

(ii) the member includes the full name of the organization

in all communications pertaining to such certification.

(C) Certification by Other State Bars. A lawyer certified by

another state bar may inform the public and other lawyers of the lawyer’s

certified area(s) of legal practice and may state in communications to the

public that the lawyer is “certified,” “board certified,” or a “specialist in

(area of certification)” or an “expert in (area of certification)” if:

(i) the state bar program grants certification on the basis of

standards reasonably comparable to the standards of the Florida

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certification plan as set forth in chapter 6, Rules Regulating The

Florida Bar, as determined by The Florida Bar; and,

(ii) the member includes the name of the state bar in all

communications pertaining to such certification.

(46) Disclosure of Liability For Expenses Other Than Fees. Every

advertisement and written communication that contains information about the

lawyer’s fee, including those that indicate no fee will be charged in the absence of

a recovery, shall disclose whether the client will be liable for any expenses in

addition to the fee.

(57) Period for Which Advertised Fee Must be Honored. A lawyer who

advertises a specific fee or range of fees for a particular service shall honor the

advertised fee or range of fees for at least 90 days unless the advertisement

specifies a shorter period; provided that, for advertisements in the yellow pages of

telephone directories or other media not published more frequently than annually,

the advertised fee or range of fees shall be honored for no less than 1 year

following publication.

(68) Firm Name. A lawyer shall not advertise services under a name that

violates the provisions of rule 4-7.104-7.9.

(9) Language of Required Statements. Any words or statements required

by this subchapter to appear in an advertisement or direct mail communication

must appear in the same language in which the advertisement appears. If more

than 1 language is used in an advertisement or direct mail communication, any

words or statements required by this subchapter must appear in each language

used in the advertisement or direct mail communication.

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(10) Appearance of Required Statements. Any words or statements

required by this subchapter to appear in an advertisement or direct mail

communication must be clearly legible if written or intelligible if spoken aloud.

(711) Payment by Nonadvertising Lawyer. No lawyer shall, directly or

indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the

same firm. Rule 4-1.5(f)(4)(D) (regarding the division of contingency fees) is not

affected by this provision even though the lawyer covered by rule 4-

1.5(f)(4)(D)(ii) advertises.

(8) Referrals to Another Lawyer. If the case or matter will be referred to

another lawyer or law firm, the communication shall include a statement so

advising the prospective client.

(912) Payment for Recommendations; Lawyer Referral Service Fees. A

lawyer shall not give anything of value to a person for recommending the

lawyer’s services, except that a lawyer may pay the reasonable cost of advertising

or written or recorded communication permitted by these rules, may pay the usual

charges of a lawyer referral service or other legal service organization, and may

purchase a law practice in accordance with rule 4-1.17.

(10) Language of Required Statements. Any words or statements required

by this subchapter to appear in an advertisement or direct mail communication

must appear in the same language in which the advertisement appears. If more

than 1 language is used in an advertisement or direct mail communication, any

words or statements required by this subchapter must appear in each language

used in the advertisement or direct mail communication.

(11) Appearance of Required Statements. Any words or statements

required by this subchapter to appear in an advertisement or direct mail

communication must be clearly legible if written or intelligible if spoken aloud. If

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the words or statements appear in text, then the text also must be no smaller than

one-quarter the size of the largest type otherwise appearing in the advertisement.

(12) Permissible Content of Advertisements. The following information

in advertisements and written communications shall be presumed not to violate

the provisions of subdivision (b)(1) of this rule:

(A) subject to the requirements of this rule and rule 4-7.10, the

name of the lawyer or law firm, a listing of lawyers associated with the

firm, office locations and parking arrangements, disability

accommodations, telephone numbers, website addresses, and electronic

mail addresses, office and telephone service hours, and a designation such

as “attorney” or “law firm”;

(B) date of admission to The Florida Bar and any other bars,

current membership or positions held in The Florida Bar, its sections or

committees, former membership or positions held in The Florida Bar, its

sections or committees, together with dates of membership, former

positions of employment held in the legal profession, together with dates

the positions were held, years of experience practicing law, number of

lawyers in the advertising law firm, and a listing of federal courts and

jurisdictions other than Florida where the lawyer is licensed to practice;

(C) technical and professional licenses granted by the state or

other recognized licensing authorities and educational degrees received,

including dates and institutions;

(D) foreign language ability;

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(E) fields of law in which the lawyer practices, including official

certification logos, subject to the requirements of subdivisions (c)(2) and

(c)(3) of this rule;

(F) prepaid or group legal service plans in which the lawyer

participates;

(G) acceptance of credit cards;

(H) fee for initial consultation and fee schedule, subject to the

requirements of subdivisions (c)(4) and (c)(5) of this rule;

(I) a listing of the name and geographic location of a lawyer or

law firm as a sponsor of a public service announcement or charitable,

civic, or community program or event;

(J) common salutary language such as “best wishes,” “good luck,”

“happy holidays,” or “pleased to announce”;

(K) an illustration of the scales of justice not deceptively similar to

official certification logos or The Florida Bar logo, a gavel, or traditional

renditions of Lady Justice, or a photograph of the head and shoulders of

the lawyer or lawyers who are members of or employed by the firm

against a plain background consisting of a single solid color or a plain

unadorned set of law books; and

(L) a lawyer referral service may advertise its name, location,

telephone number, the referral fee charged, its hours of operation, the

process by which referrals are made, the areas of law in which referrals are

offered, the geographic area in which the lawyers practice to whom those

responding to the advertisement will be referred, and, if applicable, its

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nonprofit status, its status as a lawyer referral service approved by The

Florida Bar, and the logo of its sponsoring bar association.

Comment

This rule governs all communications about a lawyer’s services, including

advertising permitted by this subchapter. Whatever means are used to make known a

lawyer’s services, statements about them must be truthful. This precludes any material

misrepresentation or misleading omission, such as where a lawyer states or implies

certification or recognition as a specialist other than in accordance with this rule, where a

lawyer implies that any court, tribunal, or other public body or official can be improperly

influenced, or where a lawyer advertises a particular fee or a contingency fee without

disclosing whether the client will also be liable for costs. Another example of a

misleading omission is an advertisement for a law firm that states that all the firm’s

lawyers are juris doctors but does not disclose that a juris doctorate is a law degree rather

than a medical degree of some sort and that virtually any law firm in the United States

can make the same claim. Although this rule permits lawyers to list the jurisdictions and

courts to which they are admitted, it also would be misleading for a lawyer who does not

list other jurisdictions or courts to state that the lawyer is a member of The Florida Bar.

Standing by itself, that otherwise truthful statement implies falsely that the lawyer

possesses a qualification not common to virtually all lawyers practicing in Florida. The

latter 2 examples of misleading omissions also are examples of unfair advertising.

Prohibited information

The prohibition in subdivision (b)(1)(B)(c)(1)(G) of statements that may create

“unjustified expectations” precludes 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, and advertisements containing client endorsements or testimonials.

Such information may create the unjustified expectation that similar results can be

obtained for others without reference to the specific factual and legal circumstances.

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The prohibition in subdivision (b)(1)(D)(c)(1)(J) of comparisons that cannot be

factually substantiated would preclude a lawyer from representing that the lawyer or the

lawyer’s law firm is “the best,” “one of the best,” or “one of the most experienced” in a

field of law.

The prohibition in subdivision (b)(1)(E)(c)(1)(K) precludes endorsements or

testimonials, whether from clients or anyone else, because they are inherently misleading

to a person untrained in the law. Potential clients are likely to infer from the testimonial

that the lawyer will reach similar results in future cases. Because the lawyer cannot

directly make this assertion, the lawyer is not permitted to indirectly make that assertion

through the use of testimonials.

Subdivision (b)(4)(c)(3) prohibits visual or verbal descriptions, depictions, or

portrayals or illustrations in any advertisement which create suspense, or contain

exaggerations or appeals to the emotions, call for legal services, or create consumer

problems through characterization and dialogue ending with the lawyer solving the

problem. Illustrations permitted under Zauderer v. Office of Disciplinary Counsel of the

Supreme Court of Ohio, 471 U.S. 626 (1985), are informational and not misleading, and

are therefore permissible. As an example, a drawing of a fist, to suggest the lawyer’s

ability to achieve results, would be barred. Examples of permissible illustrations would

include a graphic rendering of the scales of justice to indicate that the advertising attorney

practices law, a picture of the lawyer, or a map of the office location.

Communication of fields of practice

This rule permits a lawyer or law firm to indicate areas of practice in

communications about the lawyer’s or law firm’s services, such as in a telephone

directory or other advertising, provided the advertising lawyer or law firm actually

practices in those areas of law at the time the advertisement is disseminated. If a lawyer

practices only in certain fields, or will not accept matters except in such fields, the lawyer

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is permitted so to indicate. However, no lawyer who is not certified by The Florida Bar,

by another state bar with comparable standards, or an organization accredited by The

Florida Bar may be described to the public as a “specialist” or as “specializing,”

“certified,” “board certified,” being an “expert” or having “expertise in,” or any variation

of similar import. A lawyer may indicate that the lawyer concentrates in, focuses on, or

limits the lawyer’s practice to particular areas of practice as long as the statements are

true.

Paying others to recommend a lawyer

A lawyer is allowed to pay for advertising permitted by this rule and for the

purchase of a law practice in accordance with the provisions of rule 4-1.17, but otherwise

is not permitted to pay or provide other tangible benefits to another person for procuring

professional work. However, a legal aid agency or prepaid legal services plan may pay to

advertise legal services provided under its auspices. Likewise, a lawyer may participate

in lawyer referral programs and pay the usual fees charged by such programs, subject,

however, to the limitations imposed by rule 4-7.114-7.10. Subdivision (c)(9)This rule

does not prohibit paying regular compensation to an assistant, such as a secretary or

advertising consultant, to prepare communications permitted by this rule.

Required disclosures

Required disclosures would be ineffective if they appeared in an advertisement so

briefly or minutely as to be overlooked or ignored. Thus the type size to be used for

required disclosures is specified to ensure that the disclosures will be conspicuous. Thus,

required information must be legible if written or intelligible if spoken aloud to ensure

that the recipient receives the information.

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RULE 4-7.3 ADVERTISEMENTS IN THE PUBLIC PRINT MEDIA

(a) Generally. Advertisements disseminated in the public print media are subject

to the requirements of rule 4-7.2.

(b) Disclosure Statement. Except as otherwise provided in this subdivision, all

advertisements other than lawyer referral service advertisements shall contain the

following disclosure: “The hiring of a lawyer is an important decision that should not be

based solely upon advertisements. Before you decide, ask us to send you free written

information about our qualifications and experience.” Lawyer referral service

advertisements shall contain the following disclosure: “The hiring of a lawyer is an

important decision. Before you decide to hire the lawyer to whom you are referred, ask

that lawyer for written information about that lawyer's qualifications and experience.”

Outdoor advertisements may contain, in lieu of the above disclosure, the following

abbreviated version: “Before choosing a lawyer, ask for written information about the

lawyer's legal qualifications and experience.” These disclosures, however, need not

appear in advertisements in the public print media that contain no illustrations and no

information other than that listed in subdivision (c)(12) of rule 4-7.2, or written

communications sent in compliance with rule 4-7.4.

Comment

The disclosure required by this rule is designed to encourage the informed

selection of a lawyer. A prospective client is entitled to know the experience and

qualifications of any lawyer seeking to represent the prospective client.

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RULE 4-7.4 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer shall

not solicit professional employment from a prospective client with whom the lawyer has

no family or prior professional relationship, in person or otherwise, when a significant

motive for the lawyer’s doing so is the lawyer’s pecuniary gain. A lawyer shall not

permit employees or agents of the lawyer to solicit in the lawyer’s behalf. A lawyer shall

not enter into an agreement for, charge, or collect a fee for professional employment

obtained in violation of this rule. The term “solicit” includes contact in person, by

telephone, telegraph, or facsimile, or by other communication directed to a specific

recipient and includes (i) any written form of communication directed to a specific

recipient and not meeting the requirements of subdivision (b) of this rule, and (ii) any

electronic mail communication directed to a specific recipient and not meeting the

requirements of subdivision (c) of rule 4-7.6.

(b) Written Communication Sent on an Unsolicited Basis.

(1) A lawyer shall not send, or knowingly permit to be sent, on the

lawyer’s behalf or on behalf of the lawyer’s firm or partner, an associate, or any

other lawyer affiliated with the lawyer or the lawyer’s firm, aan unsolicited

written communication directly or indirectly to a prospective client for the

purpose of obtaining professional employment if:

(A) the written communication concerns an action for personal

injury or wrongful death or otherwise relates to an accident or disaster

involving the person to whom the communication is addressed or a

relative of that person, unless the accident or disaster occurred more than

30 days prior to the mailing of the communication;

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(B) the written communication concerns a specific matter and the

lawyer knows or reasonably should know that the person to whom the

communication is directed is represented by a lawyer in the matter;

(C) it has been made known to the lawyer that the person does not

want to receive such communications from the lawyer;

(D) the communication involves coercion, duress, fraud,

overreaching, harassment, intimidation, or undue influence;

(E) the communication contains a false, fraudulent, misleading, or

deceptive, or unfair statement or claim or is improper under subdivision

(b)(1)(c)(1) of rule 4-7.2; or

(F) the lawyer knows or reasonably should know that the physical,

emotional, or mental state of the person makes it unlikely that the person

would exercise reasonable judgment in employing a lawyer.

(2) Written communications to prospective clients for the purpose of

obtaining professional employment are subject to the following requirements:

(A) Written communications to a prospective client are subject to

the requirements of rule 4-7.2.

(B) The first page of such written communications shall be plainly

marked “advertisement” in red ink, and the lower left corner of the face of

the envelope containing a written communication likewise shall carry a

prominent, red “advertisement” mark. If the written communication is in

the form of a self-mailing brochure or pamphlet, the “advertisement” mark

in red ink shall appear on the address panel of the brochure or pamphlet

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and on the inside of the brochure or pamphlet. Brochures solicited by

clients or prospective clients need not contain the “advertisement” mark.

(C) A copy of each such written communication and a sample of

the envelopes in which the communications are enclosed shall be filed

with the standing committee on advertising either prior to or concurrently

with the mailing of the communication to a prospective client, as provided

in rule 4-7.7. The lawyer also shall retain a copy of each written

communication for 3 years. If identical written communications are sent

to 2 or more prospective clients, the lawyer may comply with this

requirement by filing 1 of the identical written communications and

retaining for 3 years a single copy together with a list of the names and

addresses of persons to whom the written communication was sent.

(DC) Written communications mailed to prospective clients shall

be sent only by regular U.S. mail, not by registered mail or other forms of

restricted delivery.

(ED) Every written communication shall be accompanied by a

written statement detailing the background, training and experience of the

lawyer or law firm. This statement must include information about the

specific experience of the advertising lawyer or law firm in the area or

areas of law for which professional employment is sought. Every written

communication disseminated by a lawyer referral service shall be

accompanied by a written statement detailing the background, training,

and experience of each lawyer to whom the recipient may be referred.

(FE) If a contract for representation is mailed with the written

communication, the top of each page of the contract shall be marked

“SAMPLE” in red ink in a type size 1 size larger than the largest type used

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in the contract and the words “DO NOT SIGN” shall appear on the client

signature line.

(GF) The first sentence of any written communication prompted

by a specific occurrence involving or affecting the intended recipient of

the communication or a family member shall be: “If you have already

retained a lawyer for this matter, please disregard this letter.”

(HG) Written communications shall not be made to resemble legal

pleadings or other legal documents. This provision does not preclude the

mailing of brochures and pamphlets.

(IH) If a lawyer other than the lawyer whose name or signature

appears on the communication will actually handle the case or matter, any

written communication concerning a specific matter shall include a

statement so advising the client.

(JI) Any written communication prompted by a specific

occurrence involving or affecting the intended recipient of the

communication or a family member shall disclose how the lawyer

obtained the information prompting the communication. The disclosure

required by this rule shall be specific enough to help the recipient

understand the extent of the lawyer’s knowledge regarding the recipient’s

particular situation.

(KJ) A written communication seeking employment by a specific

prospective client in a specific matter shall not reveal on the envelope, or

on the outside of a self-mailing brochure or pamphlet, the nature of the

client’s legal problem.

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Comment

There is a potential for abuse inherent in direct solicitation by a lawyer of

prospective clients known to need legal services. It subjects the person to the private

importuning of a trained advocate, in a direct interpersonal encounter. A prospective

client often feels overwhelmed by the situation giving rise to the need for legal services

and may have an impaired capacity for reason, judgment, and protective self-interest.

Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the

lawyer’s own interest, which may color the advice and representation offered the

vulnerable prospect.

The situation is therefore fraught with the possibility of undue influence,

intimidation, and overreaching. This potential for abuse inherent in direct solicitation of

prospective clients justifies the 30-day restriction, particularly since lawyer advertising

permitted under these rules offers an alternative means of communicating necessary

information to those who may be in need of legal services.

Advertising makes it possible for a prospective client to be informed about the

need for legal services, and about the qualifications of available lawyers and law firms,

without subjecting the prospective client to direct personal persuasion that may

overwhelm the client’s judgment.

The use of general advertising to transmit information from lawyer to prospective

client, rather than direct private contact, will help to assure that the information flows

cleanly as well as freely. Advertising is out in public view, thus subject to scrutiny by

those who know the lawyer. This informal review is itself likely to help guard against

statements and claims that might constitute false or misleading communications. Direct

private communications from a lawyer to a prospective client are not subject to such

third-party scrutiny and consequently are much more likely to approach (and perhaps

cross) the dividing line between accurate representations and those that are false and

misleading.

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Persons with whom the lawyer has a prior professional relationship are exempted

from the general prohibition against direct, in-person solicitation. A prior professional

relationship requires that the lawyer personally had a direct and continuing relationship

with the person in the lawyer’s capacity as a professional. Thus, a lawyer with a

continuing relationship as the patient of a doctor, for example, does not have the

professional relationship contemplated by the rule because the lawyer is not involved in

the relationship in the lawyer’s professional capacity. Similarly, a lawyer who is a

member of a charitable organization totally unrelated to the practice of law and who has a

direct personal relationship with another member of that organization does not fall within

the definition. On the other hand, a lawyer who is the legal advisor to a charitable board

and who has direct, continuing relationships with members of that board does have prior

professional relationships with those board members as contemplated by the rule.

Additionally, a lawyer who has a direct, continuing relationship with another professional

where both are members of a trade organization related to both the lawyer’s and the

nonlawyer’s practices would also fall within the definition. A lawyer’s relationship with

a doctor because of the doctor’s role as an expert witness is another example of a prior

professional relationship as provided in the rule. However, a lawyer who merely shared a

membership in an organization in common with another person without any direct,

personal contact would not meet the test. Similarly, a lawyer who speaks at a seminar

does not develop a professional relationship within in the meaning of the rule with

seminar attendees merely by virtue of being a speaker. If individual seminar attendees

request information from the lawyer who is a speaker, the information provided is then at

the request of the person and not subject to the advertising rules.

Direct written communications seeking employment by specific prospective

clients generally present less potential for abuse or overreaching than in-person

solicitation and are therefore not prohibited for most types of legal matters, but are

subject to reasonable restrictions, as set forth in this rule, designed to minimize or

preclude abuse and overreaching and to ensure lawyer accountability if such should

occur. This rule allows targeted mail solicitation of potential plaintiffs or claimants in

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personal injury and wrongful death causes of action or other causes of action that relate to

an accident, disaster, death, or injury, but only if mailed at least 30 days after the

incident. This restriction is reasonably required by the sensitized state of the potential

clients, who may be either injured or grieving over the loss of a family member, and the

abuses that experience has shown exist in this type of solicitation.

Letters of solicitation and their envelopes must be clearly marked

“advertisement.” This will avoid the recipient’s perceiving that there is a need to open

the envelope because it is from a lawyer or law firm, only to find the recipient is being

solicited for legal services. With the envelope and letter marked “advertisement,” the

recipient can choose to read the solicitation, or not to read it, without fear of legal

repercussions.

In addition, the lawyer or law firm should reveal the source of information used to

determine that the recipient has a potential legal problem. Disclosure of the information

source will help the recipient to understand the extent of knowledge the lawyer or law

firm has regarding the recipient’s particular situation and will avoid misleading the

recipient into believing that the lawyer has particularized knowledge about the recipient’s

matter if the lawyer does not. The lawyer or law firm must disclose sufficient

information or explanation to allow the recipient to locate for himself or herself the

information that prompted the communication from the lawyer.

This rule would not prohibit a lawyer from contacting representatives of

organizations or groups that may be interested in establishing a group or prepaid legal

plan for its members, insureds, beneficiaries, or other third parties for the purpose of

informing such entities of the availability of and details concerning the plan or

arrangement that the lawyer or the lawyer’s law firm is willing to offer. This form of

communication is not directed to a specific prospective client known to need legal

services related to a particular matter. Rather, it is usually addressed to an individual

acting in a fiduciary capacity seeking a supplier of legal services for others who may, if

they choose, become prospective clients of the lawyer. Under these circumstances, the

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activity that the lawyer undertakes in communicating with such representatives and the

type of information transmitted to the individual are functionally similar to and serve the

same purpose as advertising permitted under other rules in this subchapter.

RULE 4-7.5 ADVERTISEMENTS IN THE ELECTRONIC MEDIA

OTHER THAN COMPUTER-ACCESSED COMMUNICATIONS

(a) Generally. With the exception of computer-based advertisements (which are

subject to the special requirements set forth in rule 4-7.6), all advertisements in the

electronic media, including but not limited to television and radio, are subject to the

requirements of rule 4-7.2.

(b) Appearance on Television or Radio. Advertisements on the electronic

media such as television and radio shall conform to the requirements of this rule.

(1) Prohibited Content. Television and radio advertisement shall not

contain:

(A) any feature that is deceptive, misleading, manipulative, or that

is likely to confuse the viewer;

(B) any spokesperson's voice or image that is recognizable to the

public; or

(C) any background sound other than instrumental music.

(2) Permissible Content. Television and radio advertisements may

contain:

(A) images that otherwise conform to the requirements of these

rules; or

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(B) a non-attorney spokesperson speaking on behalf of the

attorneylawyer or law firm, as long as the spokesperson is not a celebrity recognizable to

the public. If a spokesperson is used, the spokesperson shall provide a spoken The

advertisement shall make an affirmative disclosure identifying the spokesperson as a

spokesperson and disclosing that the spokesperson is not an attorney a lawyer if it is

unclear from the context of the advertisement that the spokesperson is not a lawyer.

Comment

Television is now one of the most powerful media for conveying information to

the public; a blanket prohibition against television advertising, therefore, would impede

the flow of information about legal services to many sectors of the public. However, the

unique characteristics of electronic media, including the pervasiveness of television and

radio, the ease with which these media are abused, and the passiveness of the viewer or

listener, make the electronic media especially subject to regulation in the public interest.

Therefore, greater restrictions on the manner of television and radio advertising are

justified than might be appropriate for advertisements in the other media. To prevent

abuses, including potential interferences with the fair and proper administration of justice

and the creation of incorrect public perceptions or assumptions about the manner in

which our legal system works, and to promote the public's confidence in the legal

profession and this country's system of justice while not interfering with the free flow of

useful information to prospective users of legal services, it is necessary also to restrict the

techniques used in television and radio advertising.

This rule is designed to ensure that the advertising is not misleading and does not

create unreasonable or unrealistic expectations about the results the lawyer may be able

to obtain in any particular case, and to encourage the provision of useful information to

the public about the availability and terms of legal services. Thus, the rule allows lawyer

advertisements in which a lawyer who is a member of the advertising firm personally

appears to speak regarding the legal services the lawyer or law firm is available to

perform, the fees to be charged for such services, and the background and experience of

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the lawyer or law firm. The prohibition against false, misleading, or manipulative

advertising is intended to preclude, among other things, the use of scenes creating

suspense, scenes containing exaggerations, or situations calling for legal services, scenes

creating consumer problems through characterization and dialogue ending with the

lawyer solving the problem, and the audio or video portrayal of an event or situation.

Although dialogue is not necessarily prohibited under this rule, advertisements using

dialogue are more likely to be misleading or manipulative than those advertisements

using a single lawyer to articulate factual information about the lawyer or law firm’s

services.

A firm partner or shareholder, of course, is a “member” of a law firm within the

intent of the rule; likewise, a lawyer who is a law firm associate as defined in The Florida

Bar v. Fetterman, 439 So.2d 835 (Fla. 1983) is a firm “member.” Whether other lawyers

are “members” of a firm for purposes of this rule must be evaluated in light of criteria

that include whether the lawyer's practice is physically located at the firm and whether

the lawyer practices solely through the firm. There should be a presumption that lawyers

other than partners, shareholders, or associates are not “members” of a law firm for

purposes of this rule.

The prohibition against any background sound other than instrumental music

precludes, for example, the sound of sirens or car crashes and the use of jingles.

It is misleading to use a spokesperson in such a way as to appear that the

spokesperson is a lawyer or a member of the law firm being advertised. If it is unclear

from the context of the advertisement that a spokesperson is not a lawyer, the

advertisement must affirmatively disclose that the spokesperson is a spokesperson and

not a lawyer. An example of a misleading context is a nonlawyer spokesperson speaking

on behalf of the firm stating that “we” (the firm) will provide legal services and the like.

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RULE 4-7.6 COMPUTER-ACCESSED COMMUNICATIONS

(a) Definition. For purposes of this subchapter, “computer-accessed

communications” are defined as information regarding a lawyer’s or law firm’s services

that is read, viewed, or heard directly through the use of a computer. Computer-accessed

communications include, but are not limited to, Internet presences such as home pages or

World Wide Web sites, unsolicited electronic mail communications, and information

concerning a lawyer’s or law firm’s services that appears on World Wide Web search

engine screens and elsewhere.

(b) Internet Presence. All World Wide Web sites and home pages accessed via

the Internet that are controlled or sponsored by a lawyer or law firm and that contain

information concerning the lawyer’s or law firm’s services:

(1) shall disclose all jurisdictions in which the lawyer or members of the

law firm are licensed to practice law;

(2) shall disclose 1 or more bona fide office locations of the lawyer or law

firm, in accordance with subdivision (a)(2) of rule 4-7.2; and

(3) are considered to be information provided upon request and, therefore,

are otherwise governed by the requirements of rule 4-7.9not subject to subchapter

4-7.

(c) Electronic Mail Communications. A lawyer shall not send, or knowingly

permit to be sent, on the lawyer’s behalf or on behalf of the lawyer’s firm or partner, an

associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, an

unsolicited electronic mail communication directly or indirectly to a prospective client

for the purpose of obtaining professional employment unless:

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(1) the requirements of rule 4-7.2 and subdivisions (b)(1), (b)(2)(A),

(b)(2)(D), (b)(2)(E), (b)(2)(F), (b)(2)(G), (b)(2)(H), and (b)(2)(I), and (b)(2)(J) of

rule 4-7.4 are met;

(2) the communication discloses 1 or more bona fide office locations of

the lawyer or lawyers who will actually perform the services advertised, in

accordance with subdivision (a)(2) of rule 4-7.2; and

(3) the subject line of the communication states “legal

advertisement.”begins with “LEGAL ADVERTISEMENT.”

(d) Advertisements. All computer-accessed communications concerning a

lawyer’s or law firm’s services, other than those subject to subdivisionssubdivision (b)

and (c) of this rule, are subject to the requirements of rule 4-7.2.

Comment

Advances in telecommunications and computer technology allow lawyers to

communicate with other lawyers, clients, prospective clients, and others in increasingly

quicker and more efficient ways. Regardless of the particular technology used, however,

a lawyer’s communications with prospective clients for the purpose of obtaining

professional employment must meet standards designed to protect the public from false,

deceptive, misleading, or confusing messages about lawyers or the legal system and to

encourage the free flow of useful legal-related information to the public.

The specific regulations that govern computer-accessed communications differ

according to the particular variety of communication employed. For example, a lawyer’s

Internet web site is accessed by the viewer upon the viewer’s initiative and, accordingly,

the standards governing such communications correspond to the rules applicable to

information provided to a prospective client at the prospective client’s request.

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In contrast, unsolicited electronic mail messages from lawyers to prospective

clients are functionally comparable to direct mail communications and thus are governed

by similar rules. Additionally, communications advertising or promoting a lawyer’s

services that are posted on search engine screens or elsewhere by the lawyer, or at the

lawyer’s behest, with the hope that they will be seen by prospective clients are simply a

form of lawyer advertising and are treated as such by the rules.

Examples of computer-accessed communications other than websites and

electronic mail include pop-up advertisements and banner advertisements. As indicated

by the rule, such advertisements must comply with rule 4-7.2.

This rule is not triggered merely because someone other than the lawyer

gratuitously links to, or comments on, a lawyer’s Internet web site.

RULE 4-7.7 EVALUATION OF ADVERTISEMENTS

(a) Filing and Advisory Opinion. Subject to the exemptions stated in rule 4-

7.8, any lawyer who advertises services through any public media or through written

communications sent in compliance with rule 4-7.4 or 4-7.6(c)on an unsolicited basis to

prospective clients shall file a copy of each such advertisement with the standing

committee on advertisingThe Florida Bar at its headquarters address in Tallahassee for

evaluation of compliance with these rules. The copy shall be filed either prior to or

concurrently with the lawyer’s first dissemination of the advertisement or written

communication and shall be accompanied by the information and fee specified in

subdivision (b) of this rule. A lawyer may obtain an advisory opinion concerning the

compliance of a contemplated advertisement or written communication in advance of

disseminating the advertisement or communication by submitting the material and fee

specified in subdivision (b) of this rule to the standing committee on advertisingThe

Florida Bar at least 15 days prior to such dissemination. A lawyer may not obtain an

advisory opinion concerning communications that are not subject to subchapter 4-7 as

listed in Rule 4-7.1(e) through (h). If the committeeThe Florida Bar finds that the

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advertisement complies with these rules, the lawyer’s voluntary submission shall be

deemed to satisfy the filing requirement set forth in this rule.

(b) Contents of Filing. A filing with the committeeThe Florida Bar as required

or permitted by subdivision (a) shall consist of:

(1) a copy of the advertisement or communication in the form or forms in

which it is to be disseminated (e.g., videotapes, audiotapes, print media,

photographs of outdoor advertising);

(2) a transcript, if the advertisement or communication is on videotape or

audiotape;

(3) an accurate English translation, if the advertisement appears in a

language other than English;

(34) a sample envelope in which the written communication will be

enclosed, if the communication is to be mailed;

(45) a statement listing all media in which the advertisement or

communication will appear, the anticipated frequency of use of the advertisement

or communication in each medium in which it will appear, and the anticipated

time period during which the advertisement or communication will be used; and

(56) a fee paid to The Florida Bar, in an amount of $100 for submissions

timely filed as provided in subdivision (a), or $250 for submissions not timely

filed. This fee shall be used to offset the cost of evaluation and review of

advertisements submitted under these rules and the cost of enforcing these rules.

(c) Evaluation of Advertisements. The committeeFlorida Bar shall evaluate all

advertisements and written communications filed with it pursuant to this rule for

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compliance with the applicable rules set forth in this subchapter 4-7. The

committeeFlorida Bar shall complete its evaluation within 15 days of receipt of a filing

unless the committeeThe Florida Bar determines that there is reasonable doubt that the

advertisement or written communication is in compliance with the rules and that further

examination is warranted but cannot be completed within the 15-day period, and so

advises the filer within the 15-day period. In the latter event, the committeeThe Florida

Bar shall complete its review as promptly as the circumstances reasonably allow. If the

committeeThe Florida Bar does not send any communication to the filer within 15 days,

the advertisement will be deemed approved.

(d) Substantiating Information. If requested to do so by the committeeThe

Florida Bar, the filing lawyer shall submit information to substantiate representations

made or implied in that lawyer’s advertisement or written communication.

(e) Notice of Noncompliance; Effect of Continued Use of Advertisement.

When the committeeThe Florida Bar determines that an advertisement or written

communication is not in compliance with the applicable rules, the committeeThe Florida

Bar shall advise the lawyer that dissemination or continued dissemination of the

advertisement or written communication may result in professional discipline.

(f) Committee Determination Not Binding; EvidenceReliance on Notice of

Compliance. A finding of compliance by the committeeThe Florida Bar of either

compliance or noncompliance shall not be binding on The Florida Bar in a grievance

proceeding unless the advertisement contains a misrepresentation that is not apparent

from the face of the advertisement, but may be offered as evidence.

(g) Change of Circumstances; Refiling Requirement. If a change of

circumstances occurring subsequent to the committee’sThe Florida Bar’s evaluation of an

advertisement or written communication raises a substantial possibility that the

advertisement or communication has become false or misleading as a result of the change

in circumstances, the lawyer shall promptly refile the advertisement or a modified

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advertisement with the committeeThe Florida Bar along with an explanation of the

change in circumstances and an additional fee set by the board of governors but not

exceeding $100.

(h) Maintaining Copies of Advertisements. A copy or recording of an

advertisement or written or recorded communication shall be submitted to the standing

committee on advertisingThe Florida Bar in accordance with the requirements of rule 4-

7.7, and the lawyer shall retain a copy or recording for 3 years after its last dissemination

along with a record of when and where it was used. If identical unsolicited written

communications are sent to 2 or more prospective clients, the lawyer may comply with

this requirement by filing 1 of the identical unsolicited written communications and

retaining for 3 years a single copy together with a list of the names and addresses of

persons to whom the unsolicited written communication was sent.

Comment

This rule has a dual purpose: to enhance the court’s and the bar’s ability to

monitor advertising practices for the protection of the public and to assist members of the

bar to conform their advertisements to the requirements of these rules. This rule gives

lawyers the option of submitting their advertisements to the committeeThe Florida Bar

for review prior to first use or submitting their advertisements at the time of first use. In

either event, the committeeThe Florida Bar will advise the filing lawyer in writing

whether the advertisement appears to comply with the rules. The committee’s Florida

Bar’s opinion will be advisory only, but may be considered as evidence of a good faith

effort to comply with these rulesbinding on The Florida Bar in a grievance proceeding. A

lawyer who wishes to obtain a safe harbor from discipline can, therefore, submit the

lawyer’s advertisement and obtain The Florida Bar’s opinion prior to disseminating the

advertisement. A lawyer who voluntarily files an advertisement and obtains a notice of

compliance from The Florida Bar prior to using the advertisement is therefore immune

from grievance liability unless the advertisement contains a misrepresentation that is not

apparent from the face of the advertisement. A lawyer who wishes to be able to rely on

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the committee’sThe Florida Bar’s opinion as demonstrating the lawyer’s good faith effort

to comply with these rules has the responsibility of supplying the committeeThe Florida

Bar with all information material to a determination of whether an advertisement is false

or misleading.

RULE 4-7.8 EXEMPTIONS FROM THE FILING AND REVIEW

REQUIREMENT

The following are exempt from the filing requirements of rule 4-7.7:

(a) any advertisement in any of the public media, including the yellow pages of

telephone directories, that contains neither illustrations nor information other than

permissible content of advertisements set forth elsewhere in this subchapterlisted in Rule

4-7.2(b).

(b) a brief announcement in any of the public media that identifies a lawyer or law

firm as a contributor to a specified charity or as a sponsor of a public service

announcement or a specified charitable, community, or public interest program, activity,

or event, provided that the announcement contains no information about the lawyer or

law firm other than name, the city where the law offices are located,permissible content

of advertisements listed in Rule 4-7.2(b) and the fact of the sponsorship or contribution.

In determining whether an announcement is a public service announcement for purposes

of this rule and the rule setting forth permissible content of advertisements, the following

are criteria that may be considered:

(1) whether the content of the announcement appears to serve the

particular interests of the lawyer or law firm as much as or more than the interests

of the public;

(2) whether the announcement contains information concerning the

lawyer's or law firm's area of practice, legal background, or experience;

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(3) whether the announcement contains the address or telephone number

of the lawyer or law firm;

(4) whether the announcement concerns a legal subject;

(5) whether the announcement contains legal advice; and

(6) whether the lawyer or law firm paid to have the announcement

published.

(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) Any written communications requested by a prospective client.

(fd) 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.

(g) Computer-accessed communications as described in subdivision (b) of rule

4-7.6.

Comment

In The Florida Bar v. Doe, 634 So. 2d 160 (Fla. 1994), the court recognized the need

for specific guidelines to aid lawyers and the bar in determining whether a particular

announcement in the public media is a public service announcement as contemplated in

this rule and rule 4-7.2. Subdivisions (b)(1)-(6) of this rule respond to the court's concern

by setting forth criteria that, while not intended to be exclusive, provide the needed

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guidance. With the exception of subdivision (b)(3), these criteria are based on factors

considered by the court in Doe.

RULE 4-7.9 INFORMATION ABOUT A LAWYER'S

SERVICES PROVIDED UPON REQUEST

(a) Generally. Information provided about a lawyer's or law firm's services upon

request shall comply with the requirements of rule 4-7.2 unless otherwise provided in this

subchapter.

(b) Request for Information by Potential Client. Whenever a potential client

shall request information regarding a lawyer or law firm for the purpose of making a

decision regarding employment of the lawyer or law firm:

(1) The lawyer or law firm shall promptly furnish (by mail if requested)

the written (including computer-accessed) information described in subdivision

(c) of this rule.

(2) The lawyer or law firm may furnish such additional factual

information regarding the lawyer or law firm deemed valuable to assist the client.

(3) If it is believed that the client is in need of services that will require

that the client read and sign a copy of the “Statement of Client's Rights” as

required by these rules, then a copy of such statement shall be furnished

contemporaneously with the above information.

(4) If the information furnished to the client includes a fee contract, the

top of each page of the contract shall be marked “SAMPLE” in red ink in a type

size one size larger than the largest type used in the contract and the words “DO

NOT SIGN” shall appear on the client signature line.

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(5) Notwithstanding the provisions of subdivision (b)(1)(B) of rule 4-7.2,

information provided to a potential client in response to a potential client's request

may contain factually verifiable statements concerning past results obtained by

the lawyer or law firm, if, either alone or in the context in which they appear, such

statements are not otherwise misleading.

(c) Information Regarding Qualifications. Each lawyer or law firm that

advertises the lawyer's or law firm's availability to provide legal services shall have

available in written form for delivery to any potential client:

(1) a factual statement detailing the background, training, and experience

of each lawyer or the law firm;

(2) if the lawyer or law firm claims special expertise in the representation

of clients in special matters or publicly limits the lawyer's or law firm's practice to

special types of cases or clients, written information setting forth the factual

details of the lawyer's experience, expertise, background, and training in such

matters.

(d) Proof of Statements or Claims. Upon reasonable request by The Florida

Bar, a lawyer shall promptly provide proof that any statement or claim made in any

advertisement or written communication, as well as the information furnished to a

prospective client as authorized or required by these rules, is in compliance with rule 4-

7.2.

(e) Disclosure of Intent to Refer Matter to Another Lawyer or Law Firm. A

statement and any information furnished to a prospective client, as authorized by

subdivision (b) of this rule, that a lawyer or law firm will represent a client in a particular

type of matter, without appropriate qualification, shall be presumed to be misleading if

the lawyer reasonably believes that a lawyer or law firm not associated with the originally

retained lawyer or law firm will be associated or act as primary counsel in representing

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the client. In determining whether the statement is misleading in this respect, the history

of prior conduct by the lawyer in similar matters may be considered.

Comment

Consumers and potential clients often will find it useful to receive factual,

objective information from lawyers who are advertising their availability to handle legal

matters. The rule provides that potential clients may request such information and be

given an opportunity to review that information without being required to come to a

lawyer's office to obtain it. Selection of appropriate counsel is based upon a number of

factors. However, selection can be enhanced by potential clients having factual

information at their disposal for review and comparison.

This rule does not require a lawyer or law firm to provide information concerning

the lawyer's or law firm's services when requested if the lawyer or law firm is not

interested in representing the person or entity requesting the information.

RULE 4-7.104-7.9 FIRM NAMES AND LETTERHEAD

(a) False, Misleading, or Deceptive. A lawyer shall not use a firm name,

letterhead, or other professional designation that violates subdivision (b)(1) ofis false,

misleading, or deceptive as set forth in subdivision (c)(1) of rule 4-7.2.

(b) Trade Names. A lawyer may practice under a trade name if the name is not

deceptive and does not imply a connection with a government agency or with a public or

charitable legal services organization, does not imply that the firm is something other

than a private law firm, and is not otherwise in violation of subdivision (b)(1) offalse,

misleading, or deceptive as set forth in subdivision (c)(1) of rule 4-7.2. A lawyer in

private practice may use the term “legal clinic” or “legal services” in conjunction with the

lawyer’s own name if the lawyer’s practice is devoted to providing routine legal services

for fees that are lower than the prevailing rate in the community for those services.

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(c) Advertising Under Trade Name. A lawyer shall not advertise under a trade

or fictitious name, except that a lawyer who actually practices under a trade name as

authorized by subdivision (b) may use that name in advertisements. A lawyer who

advertises under a trade or fictitious name shall be in violation of this rule unless the

same name is the law firm name that appears on the lawyer’s letterhead, business cards,

office sign, and fee contracts, and appears with the lawyer’s signature on pleadings and

other legal documents.

(d) Law Firm with Offices in More Than 1 Jurisdiction. A law firm with

offices in more than 1 jurisdiction may use the same name in each jurisdiction, but

identification of the lawyers in an office of the firm shall indicate the jurisdictional

limitations on those not licensed to practice in the jurisdiction where the office is located.

(e) Name of Public Officer in Firm Name. The name of a lawyer holding a

public office shall not be used in the name of a law firm, or in communications on its

behalf, during any substantial period in which the lawyer is not actively and regularly

practicing with the firm.

(f) Partnerships and Authorized Business Entities. Lawyers may state or

imply that they practice in a partnership or authorized business entity only when that is

the fact.

(g) Insurance Staff Attorneys. Where otherwise consistent with these rules,

lawyers who practice law as employees within a separate unit of a liability insurer

representing others pursuant to policies of liability insurance may practice under a name

that does not constitute a material misrepresentation. In order for the use of a name other

than the name of the insurer not to constitute a material misrepresentation, all lawyers in

the unit must comply with all of the following:

(1) the firm name must include the name of a lawyer who has supervisory

responsibility for all lawyers in the unit;

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(2) the office entry signs, letterhead, business cards, websites,

announcements, advertising, and listings or entries in a law list or bar publication

bearing the name must disclose that the lawyers in the unit are employees of the

insurer;

(3) the name of the insurer and the employment relationship must be

disclosed to all insured clients and prospective clients of the lawyers, and must be

disclosed in the official file at the lawyers’ first appearance in the tribunal in

which the lawyers appear under such name;

(4) the offices, personnel, and records of the unit must be functionally and

physically separate from other operations of the insurer to the extent that would

be required by these rules if the lawyers were private practitioners sharing space

with the insurer; and

(5) additional disclosure should occur whenever the lawyer knows or

reasonably should know that the lawyer’s role is misunderstood by the insured

client or prospective clients.

Comment

A firm may be designated by the names of all or some of its members, by the

names of deceased members where there has been a continuing succession in the firm’s

identity, or by a trade name such as “Family Legal Clinic.” Although the United States

Supreme Court has held that legislation may prohibit the use of trade names in

professional practice, use of such names in law practice is acceptable so long as it is not

misleading. If a private firm uses a trade name that includes a geographical name such as

“Springfield Legal Clinic,” an express disclaimer that it is not a public legal aid agency

may be required to avoid a misleading implication. It may be observed that any firm

name including the name of a deceased partner is, strictly speaking, a trade name. The

use of such names to designate law firms has proven a useful means of identification.

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However, it is misleading to use the name of a lawyer not associated with the firm or a

predecessor of the firm.

Subdivision (a) precludes use in a law firm name of terms that imply that the firm

is something other than a private law firm. Two examples of such terms are “academy”

and “institute.” Subdivision (b) precludes use of a trade or fictitious name suggesting

that the firm is named for a person when in fact such a person does not exist or is not

associated with the firm. An example of such an improper name is “A. Aaron Able.”

Although not prohibited per se, the terms “legal clinic” and “legal services” would be

misleading if used by a law firm that did not devote its practice to providing routine legal

services at prices below those prevailing in the community for like services.

Subdivision (c) of this rule precludes a lawyer from advertising under a nonsense

name designed to obtain an advantageous position for the lawyer in alphabetical directory

listings unless the lawyer actually practices under that nonsense name. Advertising under

a law firm name that differs from the firm name under which the lawyer actually

practices violates both this rule and subdivision (b)(1) ofthe prohibition against false,

misleading, or deceptive communications as set forth in subdivision (c)(1) of rule 4-7.2.

With regard to subdivision (f), lawyers sharing office facilities, but who are not in

fact partners, may not denominate themselves as, for example, “Smith and Jones,” for

that title suggests partnership in the practice of law.

All lawyers who practice under trade or firm names are required to observe and

comply with the requirements of the Rules Regulating The Florida Bar, including but not

limited to, rules regarding conflicts of interest, imputation of conflicts, firm names and

letterhead, and candor toward tribunals and third parties.

Some liability insurers employ lawyers on a full-time basis to represent their

insured clients in defense of claims covered by the contract of insurance. Use of a name

to identify these attorneys is permissible if there is such physical and functional

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separation as to constitute a separate law firm. In the absence of such separation, it

would be a misrepresentation to use a name implying that a firm exists. Practicing under

the name of an attorney inherently represents that the identified person has supervisory

responsibility. Practicing under a name prohibited by subsection (f) is not permitted.

Candor requires disclosure of the employment relationship on letterhead, business cards,

and in certain other communications that are not presented to a jury. The legislature of

the State of Florida has enacted, as public policy, laws prohibiting the joinder of a

liability insurer in most such litigation, and Florida courts have recognized the public

policy of not disclosing the existence of insurance coverage to juries. Requiring lawyers

who are so employed to disclose to juries the employment relationship would negate

Florida public policy. For this reason, the rule does not require the disclosure of the

employment relationship on all pleadings and papers filed in court proceedings. The

general duty of candor of all lawyers may be implicated in other circumstances, but does

not require disclosure on all pleadings.

RULE 4-7.114-7.10 LAWYER REFERRAL SERVICES

(a) When Lawyers May Accept Referrals. A lawyer shall not accept referrals

from a lawyer referral service unless the service:

(1) engages in no communication with the public and in no direct contact

with prospective clients in a manner that would violate the Rules of Professional

Conduct if the communication or contact were made by the lawyer;

(2) receives no fee or charge that constitutes a division or sharing of fees,

unless the service is a not-for-profit service approved by The Florida Bar pursuant

to chapter 8 of these rules;

(3) refers clients only to persons lawfully permitted to practice law in

Florida when the services to be rendered constitute the practice of law in Florida;

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(4) carries or requires each lawyer participating in the service to carry

professional liability insurance in an amount not less than $100,000 per claim or

occurrence;

(5) furnishes The Florida Bar, on a quarterly basis, with the names and

Florida bar membership numbers of all lawyers participating in the service; and

(6) furnishes The Florida Bar, on a quarterly basis, the names of all

persons authorized to act on behalf of the service;

(7) responds in writing, within 15 days, to any official inquiry by bar

counsel when bar counsel is seeking information described in this subdivision or

conducting an investigation into the conduct of the service or an attorney who

accepts referrals from the service;

(8) neither represents nor implies to the public that the service is endorsed

or approved by The Florida Bar, unless the service is subject to chapter 8 of these

rules; and

(9) uses its actual legal name or a registered fictitious name in all

communications with the public.;and

(10) affirmatively states in all advertisements that it is a lawyer referral

service.

(b) Responsibility of Lawyer. A lawyer who accepts referrals from a lawyer

referral service is responsible for ensuring that any advertisements or written

communications used by the service comply with the requirements of the Rules

Regulating The Florida Bar, and that the service is in compliance with the provisions of

this subchapter.

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(c) Definition of Lawyer Referral Service. A “lawyer referral service” is:

(1) any person, group of persons, association, organization, or entity that

receives a fee or charge for referring or causing the direct or indirect referral of a

potential client to a lawyer drawn from a specific group or panel of lawyers; or

(2) any group or pooled advertising program operated by any person,

group of persons, association, organization, or entity wherein the legal services

advertisements utilize a common telephone number and potential clients are then

referred only to lawyers or law firms participating in the group or pooled

advertising program.

A pro bono referral program, in which the participating lawyers do not pay a fee

or charge of any kind to receive referrals or to belong to the referral panel, and are

undertaking the referred matters without expectation of remuneration, is not a lawyer

referral service within the definition of this rule.

Comment

Every citizen of the state should have ready access to the legal system. A person's

access to the legal system is enhanced by the assistance of a lawyer qualified to handle

that person's legal needs. Many of the citizens of the state who are potential consumers

of legal services encounter difficulty in identifying and locating lawyers who are willing

and qualified to consult with them about their legal needs. Lawyer referral services can

facilitate the identification and intelligent selection of lawyers qualified to render

assistance. However, because a potential for abuse exists, the participation of lawyers in

referral services must be regulated to ensure protection of the public.

It is in the public interest that a person seeking the assistance of counsel receive

accurate information to select or be matched with counsel qualified to render the needed

services. Therefore, a lawyer should not participate in a lawyer referral service that

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communicates misleading information to the public or that directly contacts prospective

clients about available legal services in a manner that constitutes impermissible

solicitation.

One who avails oneself of legal services is well served only if those services are

rendered by a lawyer who exercises independent legal judgment. The division or sharing

of a fee risks the creation of an obligation that impairs a lawyer's ability to exercise

independent legal judgment. Therefore, the public interest usually compels the ethical

prohibition against the division or sharing of fees and that ethical prohibition should

likewise apply to the division or sharing of fees with a lawyer referral service. The

prohibition does not extend to the lawyer's paying a pre-arranged, fixed-sum participation

fee. Furthermore, the prohibition does not apply when the referring agency is a not-for-

profit service operated by a bona fide state or local bar association under the supervision

of and approved by The Florida Bar in order to ensure that such service fulfills the

public-interest purposes of a lawyer referral service and to ensure that the risk of

impairment of the lawyer's ability to exercise independent legal judgment is in that

circumstance minimal.

It is in the public interest that a person receive legal services only from someone

who is qualified to render them. Lawyers should strive to prevent harm resulting from

the rendering of legal services by persons not legally qualified to do so. Therefore, a

lawyer should not participate in a lawyer referral service that refers clients to persons not

lawfully permitted to practice law in Florida when the services to be rendered constitute

the practice of law in Florida.

The quasi-institutionalization of legal services by a lawyer referral service implies

that the service has screened the qualifications and financial responsibility of its

participating lawyers. That implication may be misleading and does not exist when a

prospective client directly selects a lawyer at arm's length. Therefore, it is in the public

interest that only lawyers who have established a certain amount of financial

responsibility for professional liability participate in a lawyer referral service.

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Accordingly, a lawyer should participate in a lawyer referral service only if the service

requires proof of that financial responsibility.

To enable The Florida Bar to fulfill its obligation to protect the public from

unethical or other improper conduct by those who practice law in Florida, The Florida

Bar must have available to it the identity of all lawyers participating in a lawyer referral

service. Therefore, a lawyer should participate in a lawyer referral service only if the

service furnishes The Florida Bar with the names of its participating lawyers.

APPENDIX G

WRITTEN DISSENT OF TASK FORCE MEMBER BILL WAGNER

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MEMO TO: Board of Governors of the Florida Bar FROM: Bill Wagner, Member Advertising Task Force, 2004 DATE: January 26, 2005 SUBJECT: DISSENT FROM FINAL REPORT OF TASK FORCE

THE TASK FORCE PROPOSAL SHOULD BE ADOPTED

The members of the Task Force labored long and hard to bring to the Board well considered amendments to the current Rules Regulating the Florida Bar (Rules). Overwhelmingly the proposals improve the existing Rules. While individual members of the Task Force may have preferred different results as applied to any particular proposed change, and may have preferred more or less modification of the existing rules, the final consensus reached dramatically improves on what exists today.

WHAT THIS DISSENT IS NOT

The author has participated in debate and numerous votes on issues presented to the Task Force since its first meeting on March 9, 2004. For the most part these decisions had to do with revision to specific currently existing Rules or proposals for additional Rules. Some proposals were personally favored. Some were personally opposed. On some issues, I voted on the prevailing side. On some I voted on the losing side. By far the majority of decisions were made by consensus. This dissent is not for the purpose of seeking to reverse any of those decisions now encompassed in the final report by the Task Force to the Board of Governors.

DISSENT FROM TASK FORCE POLICY FAVORING PIECEMEAL AMENDMENT OF EXISTING RULES RATHER THAN FULL REVIEW OF

VIABILITY OF CURRENT RULES FORMAT AND BASIC GOVERNING POLICIES

The first basis of this dissent is from the policy adopted by the Task Force, with apparent approval of the Board and leadership, to presume that the basic concept of the need for regulation of certain advertising, the method of providing such regulation, and the goals to be accomplished by such regulation are fundamentally the same as when the Special Commission on Advertising and Solicitation (on which I served) proposed the initial Rules regulating advertising and solicitation to the Florida Supreme Court. That Court adopted the original Rules by opinion on December 21, 1990. The Special Commission, in 1989 and 1990, took extensive testimony from many sources, gathered professional surveys and studies from many sources, and commissioned a survey of the public and a separate survey of the judiciary. The purpose was to determine to what extent advertising and solicitation should be prohibited or regulated in

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order to protect the public and the justice system. The findings were influential in the decisions made in writing those first Rules and were important in sustaining the constitutional validly of those Rules in later litigation. It would appear to a casual observer that “advertising” by lawyers is entirely different today than it was in 1990. Such was the broad conclusion of the ABA in its extensive survey of lawyer advertising. This has driven proposed amendments to the ABA Rules as late as the year 2000 and to the Florida Rules as late as last year. There has been an explosion of television and radio advertising since 1990. Yellow Page advertising has grown to the level that in many cities pages devoted to lawyers exceed one hundred. While there are vast differences of opinion about the impact of such advertising on the public and the public’s perception of lawyers and the legal system, the Task Force made no effort to obtain empirical evidence either to support retention of our present system of the regulation of advertising or to support acceptance or rejection of any proposed changes. Instead the Task Force relied almost exclusively upon the unsupported opinions of the individual Task Force members. Those opinions, of necessity, were influenced to a great deal by preconceived opinions regarding advertising itself. Those favoring advertising tended to sense reasons to eliminate or reduce regulation. Those who opposed advertising tended to sense that the need existed for more regulation. This Task Force should have, once again, sought broader empirical input about the current status of lawyer advertising and should have obtained detailed information as to the effect of advertising in other states with no regulation or substantially less advertising. In my opinion, the Florida Bar is left with little to guide its decisions except, again, the individual Board members sense of what proposed regulation might accomplish. The Florida Supreme Court will therefore potentially be left with insufficient information to make informed decisions on the Boards recommendation if there is disagreement within the Court, and there may well be an insufficient record to defend the final Rules if they are challenged in litigation.

DISSENT BASED ON FAILURE TO ESTABLISH GUIDELINES OR STANDARDS AGAINST WHICH LAWYER ADVERTISING CAN BE TESTED

Although there were frequent references in debate about our obligation to “protect the public,” a lawyers “right to commercial free speech,” and the need to “avoid bringing disrespect upon the bar or the court system,” these phrases were usually used in argument to support or reject a proposed regulation, or, with some frequency, as an excuse to support argument that a current regulation might be retained or rejected. While several members of the Task Force urged development of guidelines before a review of existing Rules, the Task Force instead broke into sub-committees, with each sub-committee studying assigned sections of the current Rules to suggest changes. The ultimate success or failure of a proposal was not dictated by actions taken at the sub-committees level. The practical result was that many proposals for change were heard in depth only by a sub-committee and were often not even mentioned at the full committee level. Each members of the sub-committee brought a different and often varied to sub-committee meetings. Later discussions of controversial sub-committee proposals at sub-committee and full

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committee levels were necessarily affected by the viewpoints of those in attendances, often far less than the full membership. If the issue of the guidelines had been seriously considered, there might have been considerable argument about the content of those guidelines, or the relative importance of each guideline in making final decisions on the Rules. The proposal for adoption of guidelines was presented on several occasions early in deliberation, but the suggestion was either postponed or rejected. When the Citizens Council also suggested guidelines to be followed by the Bar, the following draft guidelines were suggested for consideration. The suggestion that they be considered was not adopted, and therefore the substance was not considered. Had guidelines been adopted at an early stage, such guidelines could have been considered by the Board to assist the Talk Force in completing the task assigned. The following guidelines are presented to give the Board an idea of the type of guidelines that could have, and should have, been adopted by the Task Force. The fact that any reader may disagree with any or all of these guidelines, as written, emphasizes the need for consensus on the goals of the regulation of advertising to assure that the final Rules regulating advertising are lawful, efficient, and meaningful in their intended result.

Proposed Guidelines for Regulation of Advertising 1. Protection of the public from receipt of false,

misleading, or deceptive information being provided by attorneys to the public for the purpose of obtaining employment by potential clients should be the primary goal of regulation.

2. To the extent possible advertising should provide

information that will assist a prospective client in making a meaningful decision about the prospective clients need for legal services, and about which lawyer can best fulfill those needs.

3. The methods used to disseminate information

about the availability of legal services should not contribute to disrespect for the justice system, including disrespect for the judiciary.

4. The methods used by an attorney to provide

information about the availability of the Attorney’s services should not cause the public to have an inaccurate view of the legal system, of lawyers in general or of the legal profession in general.

5. The methods developed to enforce any

regulation should not have an unreasonable economic impact

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upon attorneys who determine that they prefer to provide regulated information by methods that do not require expenditure of significant funds as compared to those who prefer to provide similar information by more expensive means (The fee for a newspaper classified ad should not be the same as for a three minute television commercial)

6. The rules should be shortened and simplified to

the greatest extent possible, and should to the greatest extent possible establish “bright line” standards, violation of which will likely be clear so that violation will justify the conclusion that violation was either intentional or the result of gross incompetence, thereby allowing imposition of a harsh penalty.

While these guidelines cover most of the subjects that the Courts and the Bar have formerly recognized as being important in consideration of the entire issue of advertising, the Board cannot too long avoid discussion of another subject. It is probably important to at some time discuss whether and if legal advertising is becoming a competitive factor that will lead to severe restriction on the economic ability of sole practitioners and small firms to compete with the financial capabilities of large firms. Expensive advertising might allow large firms to capture a greater number of clients with matters which provide major financial benefits to such advertising lawyers. It is the reverse of providing services to the poor, or providing legal services for minor claims. Whether this is good or bad for the public and for the justice system and the courts can be argued at length. Whether the bar should or can do anything to affect the outcome likewise can be debated at length. The issue cannot be ignored. They should not be ignored to the time when some legitimate options that might impact the practice have disappeared. .

DISSENT BASED ON FAILURE TO BE CONSISTENT IN TREATMENT OF DIFFERENT FORMS OF ADVERTISING, THUS CREATING POLICY

CONFLICTS By using the present format and structure of the Rules as a starting point, and focusing on proposed changes to specific Rules, the Task Force has created a number of policy conflicts. Some major ones are outlined to focus on the difficulties.

Levels of Regulation

Solicitation is prohibited (except when directed to certain people, such as persons with whom the lawyer has a “prior professional relationship,” “former clients,” or if the solicitation is defined as a communications “made at the request of that prospective client.”) All internet web presentations are considered “information provided on request” and therefore are not regulated. Apparently, using Google to find “trial lawyers” is

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considered a request for information and therefore advertisements found on the internet do not need regulation. Yellow Pages are minutely regulated and the Bar charges for filing such pages and devotes considerable resources reviewing those advertisements to see if the content violates, (or might violate) some Rule. The fact that the client makes the decision to open the Yellow Pages to look for a lawyer instead of using Google unrealistically authorizes the Bar to exercise a higher level of scrutiny. This does not make sense... Direct mail advertising must be sent with warnings that the contents are advertising. The fact that the potential client opens the envelope instead of throwing it in the trash is argued to be somehow different from using Google, and therefore requires the Bar to minutely examine and regulate the content of what is inside the envelope. One requirement, that proposed contracts be marked “Don’t Sign” if in an envelope is not apparently a needed requirement if the proposed contract is downloaded and printed from the internet. This does not make sense. While television and radio advertisements are closely regulated to avoid possible misleading information, should the advertiser suggest to the viewer or listener that “full information about our firm’s successes and ability can be obtained by going to our web page, or calling for our brochure,” what is provided is basically unregulated. This does not make sense. I personally would eliminate all of the minute detailed regulation of all forms of advertising. For the most part there is little if any evidence that the minute detailed regulation in fact protects the public in any way. If the public needs protection from potential misstatements by lawyers, it needs that protection whether the information is sent by mail, placed on the internet, sent in a brochure, on given in person or explained in person in an unsolicited discussion orchestrated by a lawyer lawfully under the Rules. The minute details also provide means for creative advertising that may do more harm then good. Bar involvement in enforcement of potentially meaningless minute rules detracts from the respect for the Bar’s attempts to enforce violations that are truly important to the public, the courts, and the justice system. Bar resources are misdirected. But the point of this dissent is that all advertising should be equally and fairly regulated, not just some.

Intrusiveness of Advertisement

Yellow page advertisements do not greatly intrude on the life of potential clients. They can, for the most part, live their lives without seeing or reading a lawyer’s Yellow Page advertisement. Direct mail is more intrusive, but the potential client, at most, has to read the envelope and then exercise a choice to dispose of the envelope without reading the contents. If more information is thought needed, the potential client can further inquire by opening the envelope.

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Direct solicitation of a potential client by a lawyer with whom the potential client had some “prior professional relationship,” (however defined) and even solicitation of a family member of a lawyer can be very intrusive. Television and radio advertising is the most intrusive. If one wishes to enjoy the radio or a television show one must be subjected to the lawyer advertisements. The Task Force fails to recognize this feature of the effect of advertising on the public and the potential loss of respect for lawyers, the courts and the legal system by this forced intrusion. All solicitation by lawyers of anyone should be banned. The Bar should develop and enforce heightened regulation of television and radio advertisement to less or eliminate the impact of such unwanted intrusion.

Providing Information to the Public

Initially the main justification by the Courts for allowing advertising by lawyers was to permit the public to obtain information about the need for and availability of legal services. Advertising was allowed to benefit the public. Direct mail advertising (regulated) and brochures sent on request (unregulated) as well as the internet (unregulated) have the highest prospect for providing in depth information to a client. They also have a higher risk that the information is inaccurate. Television and radio advertisements, especially the spot kind, provide the least possible valuable information, are the most intrusive, and apparently are the stated reason for alleged increase of public loss of respect for the law and lawyers. With proper proof, the Courts might allow a complete ban. The important suggestion of one member that a requirement for such advertising must be that it provides useful information was rejected by the Task Force without debate on the hurried last day of meetings. The list of “presumed” good advertising is interesting in what it includes as well as what it excludes. .Likewise of interest is the list of information that a lawyer is precluded from including in an advertisement. Finally, the list of “required” information is short indeed. Measuring each listed item on a scale of what would be of value as distinguished from what would be of little or no value to a prospective client would produce some interesting results. Consider for instance the value of listing past or current membership on any committee of the Florida against a proposal (rejected) to require a lawyer to disclose the fact of lack of liability insurance.

Failure to Define Advertisement

I suggest that an advertisement is information prepared for mass distribution to potential clients. Providing specific answers to specific questions from potential clients is not advertising.

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The Bar should not allow an advertisement to be totally unregulated just because a client played some small part in receiving the information or because it is part of a mass mailing to other lawyers.. A good start to eliminating this inconsistency would be for the Bar to define what constitutes an advertisement. Whether an advertisement is regulated or not is separate issue which should be squarely faced. DISSENT FOR CONTINUED LACK OF CLARITY IN RULE DEVELOPMENT

It is suggested that in reviewing the proposed amendments a person will more than once be searching back and forth through the Rules in an effort to discern the basic intent and meaning of a particular rule. Constant cross referencing must create confusion. The members of the Bar cry out for simplicity and clarity. Little has been done to provide it. An example is Rule 4-7.6(c) (1) that references compliance with another rule (Rule 4-7.2) which Rule references as an exception selected subsections of Rule 4-7.1. Likewise referenced are eight specific subdivisions of another rule (Rule 4-7.4) one of which makes further reference to Rule 4-7.2. It is claimed that this cross referencing is necessary for “clarity.” But proof of this claim is needed. If a Rule is important, it should be clearly stated in almost every case rather than require reference to all or parts of other rules. Of course, an honest review of the necessity for many of these Rules, called for elsewhere, might avoid many cross references by elimination of many of the Rules referenced. DISSENT FOR FAILURE TO EMPHSIZE BASIC ADVERTISING STANDARD

While the Title to the applicable section of the Rules is “Information about Legal Services” the most important Rule involved in protecting the public is not included except by a vague reference. Proposed Rule 4-7.1(i) makes a vague reference to “the general rule prohibiting a lawyer from engaging in conduct involving dishonesty, deceit or misrepresentation.” The general rule” referred to is not cited but apparently is Rule 4-8(c). Throughout discussion of proposed changes in the rules, the Task Force was referred to “our other rules against cheating and stealing.” On one occasion, when staff was asked to provide a reference to the rule, it took some effort for it to be found. For lawyers who have never looked at the voluminous Rules since preparing for the bar exam. They may look at the Rules only to prepare their advertisement. I suggest that the point below needs emphasis. I suggest this is perhaps sufficiently important in the case of advertising and solicitation that an introductory Rule to the entire section be created to state:

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“In providing information to prospective clients about legal services or to a current or former client about new or additional services, a lawyer shall not by any means directly or indirectly provide information which involves dishonesty, fraud, deceit or misrepresentation.”

This is the single incidence in this dissent that I request consideration of a proposal for a Rule which was considered and rejected by the Task Force.

PROPOSAL

The Board of Governors should carefully consider the proposed amendments to the current Rules proposed by the Task Force, and would probably be well advised not to modify the proposal based on spur of the moment debate and discussion. The Board should commend the Task Force, and especially its Chair and Vice Chair for work well done on a difficult and complex problem. The Board should go further, however. The Board should recommit to the Task Force or create a new Task Force with instructions that it must: (a) Collect empirical information and other valid evidence about the current status of legal advertising and expected developments in the reasonable future. (b) Develop guidelines for the determination of the need for and extent of regulation of advertising by the legal profession. Tentative approval of the guidelines developed should be sought from the Board to assist in the balance of the labors which follow. (c) Evaluate the need for a complete revamp of current regulations governing legal advertising, and if such need is determined, propose revised Rules. While the charge to the new Task Force should emphasis a need for thoroughness and reasonable efficiency in completing the task, there should be no artificial deadline for accomplishing each stage. The Task Force should make regular reports to the Board as to progress being made toward completion of the project .