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April 1, 2011
Panel weighs in on Social Security Administration representation ads

By Gary Blankenship
Senior Editor

A law firm that wants to use out-of-state lawyers and nonlawyers to represent clients before the Social Security Administration must say that in any ads it runs, according to the Bar’s Standing Committee on Advertising.

The committee weighed in on the law firm’s query during a March 11 meeting. The Professional Ethics Committee had earlier addressed other aspects of the law firm’s plans to use nonlawyers and lawyers licensed in other jurisdictions.

The advertising committee also addressed ads designed to pop up as part of Google searches and considered a retiring lawyer’s request that he be allowed to be listed as “emeritus” on the firm’s letterhead even though he would no longer have an interest in the firm.

The Social Security issue was part of a broader inquiry that was originally directed at the PEC, which referred the ad-related section to the SCA.

Bar Advertising Counsel Elizabeth Tarbert said the inquiry states that under federal rules, a lawyer licensed in any U.S. jurisdiction can appear in any Social Security hearing, and nonlawyers who meet certain qualifications also are allowed to represent clients.

Among questions submitted by the inquiring firm was whether it would have to say in advertisements that clients might be represented by nonlawyers or lawyers who are not Florida Bar members.

“Our [Bar staff] recommendation to you is to tell them [the firm] they do have to state that,” Tarbert said. “I don’t think people come to a law firm for Social Security claims and believe they are going to get a nonlawyer handling that case.”

She added that Bar Rule 4-7.2(c)(1)(C) prohibits false or misleading ads, or ads that fail to “disclose material information necessary to prevent the information supplied from being false or misleading.”

The committee agreed. “I don’t see how it [the rule] can’t apply,” said committee Chair Gary Lesser. “It’s important information.”

Committee members also reviewed the opinion the PEC directed Bar staff to draft to answer other questions posed by the law firm. Those include:

• If permitted by law, the firm can use nonlawyers and lawyers admitted in other jurisdictions in Social Security cases, but whether that is allowed under federal law is a legal question outside of the PEC’s jurisdiction.

• The exact employment relationship – as associates or of counsel – between the firm and the non-Bar members is outside the PEC’s scope to answer.

• The arrangement would not involve the improper division of legal fees as long as nonlawyers and out-of-state lawyers were paid a salary “and are not paid or given bonuses in a way that would constitute improper fee-sharing.”

• Bar rules require that out-of-state lawyers and nonlawyers be supervised to ensure their conduct comports with all attorney legal and ethical duties. The PEC was concerned how that supervision would work when the out-of-state lawyers and nonlawyers appeared alone before the SSA or other agency. The PEC opinion also noted, “Consistent with the written inquiry, clients must give informed consent to representation by nonlawyers and lawyers admitted in other jurisdictions after being informed of the advantages and disadvantages of such representation.”

• The law firm may not represent that the nonlawyers or out-of-state lawyers are licensed to practice in Florida.

On the emeritus attorney question, the committee had been asked by a lawyer who was planning to retire and divest himself of his interest in his firm partnership if he could appear on the firm letterhead as an “emeritus” attorney instead of as a “retired” attorney. The attorney said that would be a better title in case he later decided to return to practice with the firm.

The committee said that would be allowed only if the lawyer complied with the requirements under the Bar’s emeritus attorney program in Rule 12 and for obtaining emeritus status in Rule 12-1.2. If the lawyer returned to practice, he could not be listed on the letterhead or in the firm name unless he had an of counsel relationship with the firm and the letterhead reflected that.

On the Google ad issue, the inquiring law firm queried whether its paid ad that appears as part of Google searches using certain terms was required to list the name of at least one lawyer in the firm and at least the location of one office (which are required by Bar rules). The firm also asked if the ad had to be submitted for Bar review. A representative of the firm noted the ad had no contact information for the firm, and anyone seeking more information would have to follow the link to the firm’s website, which has all the information required in Bar rules.

The committee advised that the Google placement was an ad and consequently must comply with Bar rules.

[Revised: 07-30-2014]