Lawyer ad rules streamlined for greater clarity

first_img Lawyer ad rules streamlined for greater clarity Disciplinary fees also increased by the Supreme Court’s action Lawyer ad rules streamlined for greater clarity June 15, 2004 Regular News Lawyers who advertise have more freedom about images and pictures they can show in their ads, and attorneys who are disciplined face higher administrative costs — although not as high as The Florida Bar wanted — under rule amendments approved by the Supreme Court.The court on May 20 acted on the amendments to the Rules Regulating The Florida Bar filed by the Bar early last year. Amendment to the Rules Regulating The Florida Bar, case no. SC03-705.“The large number of proposals in the instant petition demonstrates that the Bar has expended a great deal of time, thought, and effort in reviewing these rules and determining where the rules needed to be clarified, reorganized, or changed,” the court said in the unanimous per curiam opinion. “We thank the Bar for its dedicated and diligent efforts in this undertaking.”The entire opinion, along with all of the approved rule amendments, can be found on the court’s Web site at www.flcourts.org. A summary of the approved rule amendments also has been posted on the sunEthics Web site, which covers Florida-related and other ethical issues, at www.sunethics.com/news_item_14.htm.“The advertising rules are very important because they expand and clarify what is permissible in advertisements, particularly television,” said Bar Counsel Tony Boggs of the rule amendments. “Most changes are to better organize and clarify the rules.”Other amendments affect the use of parol (word of mouth) evidence in discipline cases, the timing of payment of disciplinary costs and restitution, when suspended or disbarred attorneys can work for lawyers they used to supervise, and provide guidance on setting costs for clients.The advertising amendments, proposed by the Standing Committee on Advertising and the Board of Governors, represented an attempt by the Bar to streamline and simplify the regulations, making them easier for Bar members to follow. Their court approval comes as the advertising rules are again becoming a high profile issue.President-elect Kelly Overstreet Johnson has appointed a special committee to review the advertising rules. And the Florida House passed a bill this year banning advertisements that would solicit a potential client to file a lawsuit. Although not taken up in the Senate, the bill sponsor, Rep. David Simmons, R-Altamonte Springs, has promised to reintroduce it next year and Senate leaders have said they would favor a bill restricting lawyer ads.The court-approved amendments delete, in Rules 4-7.2(b)(4) and 4-7.2(c)(1), the requirement that visual and verbal portrayals and illustrations be directly related and objectively relevant to the viewers’ need for an attorney or need for legal services.Changes to Rule 4-7.5 bring regulations on electronic ads more in to line with the restrictions on other types of ads. They allow more visual images in TV ads, and allow nonlawyer speakers, as long as they are not recognizable celebrities and are identified as nonlawyers.Another change expanded the requirement that the hiring disclosure in a print or billboard ad be at least one-quarter the size of the largest type in the ad and made it apply to all required information in the ad. That language was also moved to Rule 4-7.2(c)(11) and eliminated in Rule 4-7.3(b).Rule 4-7.11 was changed to require lawyer referral services to provide the Bar with quarterly reports of the persons authorized to act for the service, to respond within 15 days to any official Bar inquiry, and mandate that services use their actual legal or registered fictitious names in all communications with the public.On the nonadvertising rules, the court approved a change to Rule 1-7.3 on delinquency costs and restitution related to discipline cases. Currently imposed costs and restitution is due within 45 days, but nonpaying attorneys are not considered delinquent until the delinquency date of the next annual dues cycle, which can be several months.Under the amendment, nonpaying members will be considered delinquent after 45 days. Delinquent members, under the rules, cannot practice in Florida. Costs under the rule include the expense of attending the diversionary ethics school if the lawyer agreed to do that as part of a grievance complaint dismissal.The amount of grievance costs will also be higher. Since 1994, the lowest cost that could be assessed has been $750. The Bar had asked the court to impose a sliding scale, from $1,000 to $5,000 depending how far a case had proceeded through the grievance system before it was either settled or decided.The court rejected that, saying it would penalize lawyers for pursuing their legitimate rights in the process. But justices agreed that the cost was too low, noting Bar expenditures for the grievance system have increased about 80 percent since the $750 minimum was set. The court approved adding $500, bringing the minimum fee to $1,250. (Additional costs are regularly added to this minimum.)On parol evidence, the court noted it had asked the Bar in The Florida Bar v. Frederick, 756 So. 2d 29 (Fla. 2000) to address an apparent inequity. While that decision said parol evidence could be used in a grievance, the court said there was a potential problem in a fee dispute. In such a case, the client could seek restitution through the grievance process, where parol evidence would be allowed, while the lawyer would be limited to pursuing a civil action, where parol evidence is not allowed.The court rejected the Bar’s proposed language and substituted this: “Evidence other than that contained in a written attorney-client contract may not be used in proceedings conducted under the Rules Regulating The Florida Bar to vary the terms of that contract, except competent evidence other than that contained in a written fee contract may be used only if necessary to resolve issues of excessive fees or excessive costs.”The court added that language to Rule 3-7.6, Proceedings Before a Referee.The Bar recommended and the court approved changes to Rule 4-8.4(i) to add specific examples of when sex is prohibited between an attorney and client, “including but not limited to a duly authorized constituent of” a corporate or other nonperson client. The rule also provides that a lawyer is in violation if a sexual relationship with a client causes the lawyer to render incompetent services.On suspended lawyers working for former subordinates, the court approved a new subsection (c) to Rule 3-6.1 prohibiting lawyers who have been disbarred, suspended, or taken a disciplinary resignation from working for a former subordinate for three years or until the suspended attorney is reinstated. The Bar had asked for a straight three year prohibition, but the court said that would be unfair to attorneys with shorter suspensions.In Rule 4-8.6, the court declined to adopt a proposed Bar amendment to subsection (e). The change would have removed a current provision that lawyers who are the sole shareholders, proprietors, members, or partners of a business entity practicing law and who are suspended for less than 91 days do not have to sever all contacts with that entity and close it down, reopening it when the suspension is over.“We decline to adopt a rule that would impose such severe consequences on an attorney receiving a short-term suspension and that attorney’s employees,” the court said.The court also approved changes to Rule 4-1.5 which clarify that an attorney’s costs as well as fees must be reasonable, and that the lawyer should communicate those costs to the client. The rule also provides a safe harbor provision when costs are provided in writing to the client.Among other changes approved by the court:• Changing Rule 6-3.1 by adding a subsection that the Board of Legal Education and Specialization is responsible for setting policies, procedures, and appropriate fees to evaluate and accredit lawyer-certifying organizations and programs.• Creating in Subchapter 6-24 the new category of Board Certified Construction Law Lawyer.• Changing in Rule 10-4.1 the terms of circuit Unlicensed Practice of Law committee members from one year to three years and providing that members can serve a maximum of two terms. A former member may return to the committee after one year, instead of the previous three-year requirement.• Amending Rule 10-7.1 to allow a referee in a UPL case to recommend, or the respondent to agree to, restitution to victims. Rule 10-7.2 was also amended to allow indirect criminal contempt proceedings when a respondent fails to pay restitution.• Merging the grievance mediation and fee arbitration programs into Chapter 14 of the rules, to provide a common administrative process.All of the rule amendments are effective immediately.Justice Barbara Pariente, joined by Justice Raoul Cantero, wrote a concurring opinion to address the increase in the administrative fee in grievance cases and on the sex-with-clients rule.On the fee, Pariente said she agreed with raising the fee to $1,250, but would also have allowed it to rise to $2,500 in cases where the respondent appeals a referee’s recommended discipline to the court, and the court does not reduce the penalty.“Thus, the $1,250 fee would not be increased in cases in which the Bar appeals or in cases in which this court reduced the referee’s recommended discipline,” Pariente wrote.On the sex-with-clients rule, the justice noted in a concurring opinion in a 2002 case she called for a complete ban in the rule on all attorney-client sexual relationships.“Although the Bar did not propose a ban on sexual relationships between attorneys and clients, I commend the Bar for strengthening the rule,” she said. “I further request that this rule be assessed periodically to ensure that it operates to guarantee that the attorney-client relationship is not compromised in any regard as a result of an ongoing sexual relationship.”last_img read more

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