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Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation

(Revised and adopted by the Board of Governors on May 24, 2002)

On This Page

1. Application; Scope; And Usage
2. Authority To Issue Advertising Opinions
3. Procedures For Issuance Of And Declining To Issue Staff Opinions
4. Procedure For Issuance Of SCA Opinions
5. Procedure For Review Of SCA Action
6. Procedure For Issuance Of Board Of Governors Opinions
7. Time For Appeals


1. APPLICATION; SCOPE; AND USAGE
Staff opinions, standing committee on advertising opinions, and opinions of the board of governors are advisory only and are not the basis for action by grievance committees, referees, or the board of governors except upon application of the respondent in disciplinary proceedings. If a respondent's defense includes reliance on the receipt of a staff opinion, ethics counsel may release to the bar counsel, grievance committee, referee, or board of governors information concerning the opinion or the opinion request that would otherwise be confidential under these rules. Information concerning requests for staff opinions are confidential, except as otherwise provided in bylaw 2-9.4, Rule 15-4.2, and these procedures. If public statements are made by the inquirer about any advisory opinion or opinion request, confidentiality of the request and the opinion is waived and ethics counsel may disclose the opinion and information relating to the request.
The proposed advisory advertising opinion process should not be used to circumvent procedures to adopt or amend Rules Regulating The Florida Bar.

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    2. AUTHORITY TO ISSUE ADVERTISING OPINIONS
    Ethics counsel and assistant ethics counsel, the standing committee on advertising, and the board of governors have the authority to evaluate attorney advertisements in accordance with rule 4-7.19 and to issue advisory advertising opinions in the type and manner as set forth in these procedures.
      (a) Ethics Counsel and Assistant Ethics Counsel. Ethics counsel and assistant ethics counsel may render oral and written opinions that will be identified as "staff opinions." Staff opinions may be issued only to the members of The Florida Bar in good standing inquiring as to their own contemplated conduct.
      (1) Staff opinions will not be issued if it is known to staff that the inquiry:
        (A) is made by a person who is not a member of The Florida Bar in good standing;
        (B) concerns past conduct of the inquirer;
        (C) involves the conduct of an attorney other than the inquirer;
        (D) asks a question of law;
        (E) asks a question of rule or court procedure; or
        (F) is the subject of a proceeding brought under the Rules Regulating The Florida Bar.
      (2) Staff may decline to issue an opinion if the inquiry:
        (A) is the subject of current litigation; or
        (B) asks a question for which there is no previous precedent or underlying bar policy on which to base an opinion.
      (b) Standing Committee on Advertising. The standing committee on advertising (SCA) may render written opinions, amend existing opinions, or withdraw existing opinions:
      (1) on appeal of a written staff opinion by the inquiring attorney;
      (2) on request of the board of governors regarding application of the attorney advertising rules to a particular set of facts;
      (3) on review of staff opinions by the SCA; or
      (4) on review of existing advisory advertising opinions by the SCA.
      Opinions of the SCA shall be identified as advisory advertising opinions.
      (c) Board of Governors. The board of governors may render written opinions, amend existing opinions, or withdraw existing opinions:
        (1) on appeal of SCA action; and
        (2) on its own initiative when the board of governors determines that the application of the attorney advertising rules to a particular set of facts is likely to be of widespread interest or unusual importance to a significant number of Florida Bar members.
      Opinions of the board of governors will be identified as advisory advertising opinions.
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3. PROCEDURES FOR ISSUANCE OF AND DECLINING TO ISSUE STAFF OPINIONS

    (a) Request for Staff Opinion.
      (1) Oral Staff Opinions. Members in good standing may request an oral staff opinion, other than an advertising filing required by rule 4-7.19, by calling ethics counsel in Tallahassee, at 1-800-235-8619 or 1-850-561-5780. Oral opinions may be confirmed in writing only in accord with the procedures for issuance of written staff opinions. All information relating to the request for an oral staff opinion shall be confidential as provided elsewhere in these procedures.
      (2) Written Staff Opinions. Members in good standing may request a written staff opinion, other than an advertising filing required by rule 4-7.19, by writing Ethics Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300 or by electronic mail to eto@flabar.org. All requests for written staff opinions must set forth all operative facts upon which the request is based and contain an affirmative statement that the criteria of procedure 2(a) are met. Except for advertising filings required by rule 4-7.19, all material and information relating to the request for a written staff opinion are confidential as provided elsewhere in these procedures.
    (b) Declining to Issue Staff Opinions. Ethics counsel must decline to issue a staff opinion if any criteria of procedure 2(a)(1) apply. Ethics counsel may decline to issue a staff opinion if any criteria of procedure 2(a)(2) apply.
    (c) Appeal to SCA. Members filing advertisements for evaluation under rule 4-7.19 or requesting a written staff opinion may appeal the opinion or the decision not to issue the opinion to the SCA as provided elsewhere in these procedures. Appeals to the SCA shall be public information. Oral staff opinions and decisions not to issue an oral opinion may not be appealed.
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4. PROCEDURE FOR ISSUANCE OF SCA OPINIONS

    (a) Scheduling SCA Review. Timely appeals, requests of the board of governors, SCA review of staff opinions, and SCA review of existing advisory advertising opinions will be scheduled for SCA consideration at the next available meeting of the SCA if any official notice requirements are met.
    (b) Authority of SCA Chair. The chair of the SCA has the discretion to determine the order of the agenda, time allocated to each matter, and whether personal appearances may be allowed. In addition, the chair may appoint a subcommittee to conduct the review.
    (c) Notice of SCA Review.
      (1) Adoption and Modification of Opinions. In the event that the SCA decides to consider rendering a written opinion for publication at the request of the board of governors, on SCA review of staff opinions, or on SCA review of existing formal opinions, the SCA must publish in The Florida Bar News an official notice of its intent to consider rendering a written opinion. The notice must state the time and place at which the SCA’s deliberations will occur and must invite written comments from interested bar members. Initial publication must fully identify the subject matter of the issue and any proposed text, if then available, and invite written comment. If an opinion is issued, the SCA must publish an official notice of the adoption of the advisory advertising opinion in The Florida Bar News, including the full text of the opinion. Any subsequent notice must contain the full text of any revised advisory advertising opinion.
      (2) Withdrawal of Opinions. In the event that the SCA decides to consider withdrawing an advisory advertising opinion, the SCA must publish in The Florida Bar News an official notice of its intent to consider withdrawing the advisory advertising opinion. The notice must state the time and place at which the SCA’s deliberations will occur, summarize the advisory advertising opinion, and invite written comments from interested bar members.
    (d) Comments. Any member in good standing may file written comment with ethics counsel within 30 days of the date of publication of official notice of the SCA’s intent to consider rendering an advisory advertising opinions, official notice of the SCA’s adoption of a proposed advisory advertising opinion, official notice that the SCA has revised a proposed advisory advertising opinion, or official notice that the SCA intends to withdraw an advisory advertising opinion.
    All comments filed under this subdivision must be in the form of written statements with relevant facts, arguments in support, and citations to relevant authority, if any.
    (e) Record on Review. Ethics counsel will prepare and distribute to the SCA a file on each matter for review. Any person may request and receive a copy of the file. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies.
      (1) Appeals of Written Staff Opinions. The file will include the original request for the opinion, the written staff opinion, and the written request for SCA review.
      (2) Requests of Board of Governors. The file will include the request, relevant material and authorities, any proposed text for consideration, and any timely comments.
      (3) Review of Staff Opinions. The file will include the original request for the opinion, the written staff opinion, and the written request for SCA review.
      (4) Review of Existing Advisory Advertising Opinions. The file will include the existing advisory advertising opinion, relevant material and authorities, and the written request for SCA review.
    (f) SCA Action. By majority vote of those present, the SCA may:
      (1) Appeals of Written Staff Opinions.
        (A) affirm the opinion, in whole or in part;
        (B) reverse the opinion, in whole or in part;
        (C) return the opinion to ethics counsel with instructions as to redrafting; or
        (D) determine to issue, amend, or withdraw an advisory advertising opinion.
      (2) Requests of Board of Governors.
        (A) decline to issue an advisory advertising opinion;
        (B) agree to issue, amend, or withdraw an advisory advertising opinion; or
        (C) provide informal information or comments to the inquirer.
      (3) Review of Staff Opinions.
        (A) affirm the opinion, in whole or in part;
        (B) reverse the opinion, in whole or in part;
        (C) return the opinion to ethics counsel with instructions as to redrafting; or
        (D) determine to issue, amend, or withdraw an advisory advertising opinion.
      (4) Review of Existing Advisory Advertising Opinions.
        (A) affirm the advisory advertising opinion, in whole or in part;
        (B) reverse the advisory advertising opinion, in whole or in part;
        (C) determine to issue, amend, or withdraw an advisory advertising opinion.
    (g) Notice of SCA Action. Notice of SCA action regarding formal opinions of the SCA will be published in The Florida Bar News. Notice of the SCA’s actions will be provided by ethics counsel to:
      (1) Appeals of Written Staff Opinions. The inquiring member who requested review of a written staff opinion or an advertisement filed in accordance with rule 4-7.19;
      (2) Requests of Board of Governors. The inquirer, all members who timely commented on a referral from the board of governors, any member who requests review within 30 days of the publication of the notice of SCA action, and the bar’s executive director;
      (3) Review of Staff Opinions. All members who timely commented on notice of the SCA’s review of staff opinions.
      (4) Review of Existing Advisory Advertising Opinions. All members who timely commented on notice of the SCA’s review of existing advisory advertising opinions.
    (h) Appeal of SCA Action. Any member who timely commented to the SCA and any member who timely appealed a written staff opinion may appeal action of the SCA to the board of governors as provided elsewhere in these procedures.
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5. PROCEDURE FOR REVIEW OF SCA ACTION

    (a) Referral to Board Review Committee on Professional Ethics. Timely appeals from SCA action will be referred to the Board Review Committee on Professional Ethics (BRC).
    (b) Scheduling BRC Review. Timely appeals will be scheduled for BRC consideration at the next meeting of the BRC if the appeal or request is made more than 30 days in advance of such meeting.
    (c) Authority of BRC Chair. The chair of the BRC has the discretion to determine the order of the agenda, time allocated to each matter, and whether personal appearances may be allowed. In addition, the chair may appoint a subcommittee to conduct the review.
    (d) Record on Review. Ethics counsel will prepare and distribute to the BRC a file on each matter for review. Any person may request and receive a copy of the file. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies. The file will include the record before the SCA and the request for BRC review.
    (e) BRC Action. By majority vote of those present, the BRC may:
      (1) affirm the SCA action, in whole or in part;
      (2) reverse the SCA action, in whole or in part; or
      (3) return the matter to the SCA with instructions as to redrafting.
    (f) Review of BRC Action. The BRC will report its actions to the board and the action will be placed on the agenda of the board for review and approval as a consent item if affirming SCA action. Any member of the board may request that any BRC action be taken up for discussion by the full board. By majority vote of those present, the board may:
      (1) affirm the SCA action, in whole or in part;
      (2) reverse the SCA action, in whole or in part; or
      (3) return the matter to the SCA with instructions as to redrafting.
    (g) Notice of Board of Governors Action. Notice of board of governors action regarding formal advisory advertising opinions will be published in The Florida Bar News. Notice of the board’s actions will be provided by ethics counsel to the members who timely requested board of governors review.
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6. PROCEDURE FOR ISSUANCE OF BOARD OF GOVERNORS OPINIONS

    (a) Referral to BRC. Board of governors decisions to render an advisory advertising opinion will be referred to the BRC to develop a specific set of facts upon which the opinion will be based, comply with notice provisions in this procedure, and adopt a written advisory opinion applying the attorney advertising rules to the set of facts.
    (b) Scheduling BRC Review. Advisory advertising opinions will be scheduled for BRC consideration if the decision to consider rendering an opinion is made more than 30 days in advance of such meeting and any official notice requirements are met.
    (c) Authority of BRC Chair. The chair of the BRC has the discretion to determine the order of the agenda, time allocated to each matter, and whether personal appearances may be allowed. In addition, the chair may appoint a subcommittee to conduct the review.
    (d) Notice of BRC Opinion. In the event that the board of governors refers an issue to the BRC to render a written opinion for publication, the BRC will publish in The Florida Bar News an official notice of its intent to consider rendering a written opinion. The notice will state the time and place at which the BRC’s deliberations will occur and invite written comments from interested bar members. Initial publication will identify the subject matter of the issue and any proposed text, if then available, and invite written comment. If an opinion is issued, the BRC will publish an official notice of the adoption of the advisory advertising opinion in The Florida Bar News, including the full text of the opinion. Any subsequent notice will contain the full text of any revised advisory advertising opinion.
    (e) Comments. Any member in good standing may file written comment with ethics counsel within 30 days of the date of publication of official notice of the BRC’s intent to consider rendering a proposed advisory opinion, official notice of the BRC’s adoption of an advisory opinion, or official notice that the BRC has revised a proposed advisory opinion.
    All comments filed under this subdivision must be in the form of written statements with relevant facts, arguments in support, and citations to relevant authority, if any.
    (f) Record on Review. Ethics counsel will prepare and distribute to the BRC a file on each matter for review. Any person may request and receive a copy of the file. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies. The file will contain the statement of facts upon which the proposed advisory opinion will be made, relevant material and authorities, and the text of the proposed advisory opinion, if then available.
    (g) BRC Action. By majority vote of those present, the BRC may:
      (1) determine to issue an opinion; or
      (2) determine not to issue an opinion.
    (h) Review of BRC Action. The BRC will report its actions to the board. By majority vote of those present, the board may:
      (1) affirm the BRC action, in whole or in part;
      (2) reverse the BRC action, in whole or in part; or
      (3) return the matter to the BRC with instructions as to redrafting.
    (i) Notice of Board of Governors Action. Notice of board of governors action regarding formal advisory opinions will be published in The Florida Bar News. Notice of the board’s actions will be provided by ethics counsel to the members who timely filed comments.
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7. TIME FOR APPEALS

    All appeals allowed under these procedures shall be commenced by mailing the required items to Ethics Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, within 30 days of notice of the action that is the subject of the appeal. Failure to timely commence an appeal bars the appeal.

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[Revised: 08-05-2013]