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March 15, 2018

The budget, lawyer advertising on the board’s March agenda
By Jim Ash
Senior Editor

When they gather for their March 23 meeting in Sarasota, The Florida Bar’s Board of Governors will face a packed agenda that includes signing off on the Bar’s 2018-19 budget and an update on the Bar’s effort to comply with a federal court ruling concerning advertising regulations for certified lawyers.

The board will be presented with a recommended budget that for the 17th year in a row calls for no annual membership fee increase. Expenditures are still being finalized, so it’s not clear whether they will exceed the current $42.9 million.

Membership fees will remain at $265 for active members and $175 for inactive members.

Also on the agenda will be a presentation from the Board Review Committee on Professional Ethics regarding the Bar’s effort to respond to a ruling two years ago by U.S. District Judge Robert Hinkle, one that invalidated a Bar rule limiting what lawyers could claim in advertising.

The rule specified that only lawyers who are Bar certified can say in advertising that they are specialists or experts, and that law firms could not claim specialization or expertise.

The Bar had proposed a rule that non-certified lawyers could use those terms if their qualifications and experience were reasonably comparable criteria to the certification rules and had a disclaimer that they were not certified, but the Florida Supreme Court rejected that draft.

Hinkle ruled the original restriction unconstitutional because it prohibited lawyers who practiced in areas without certification from saying they were experts, prohibited lawyers who have not been certified from claiming specialization or expertise even when they limit their practices to a specific area and have successfully handled many cases in that area, and prohibited law firms from claiming specialization or expertise even when that expertise was undeniable.

The latest BRCPE proposal would allow lawyers to claim specialization or expertise if they meet or exceed the certification standards (except for examination and peer review), but would require a disclaimer if the area is one in which the lawyer could be certified. It proposes to treat law firm claims of specialization and expertise in a similar fashion, requiring a majority of lawyers to meet or exceed the standards, with the exception of examination or peer review, and require a similar disclaimer.

The Florida Supreme Court has ordered the Bar to file a new proposal on or before May 15.

In addition to the advertising issue, the BRCPE could make recommendations to the board on alternatives to traditional lawyer referral service fees. Discussions are ongoing.

Board members will also be asked to approve a flurry of nominations — 156 in all — for the state’s 26 Judicial Nominating Commissions. The nine-member panels vet candidates to fill mid-term vacancies on trial and appellate courts, including the Supreme Court, and forward the recommendations to the governor. The board will be forwarding the names of six lawyers for each commission to Gov. Rick Scott, who will appoint two to each JNC.

Also at the March meeting, the board could review Standing Board Policy 2.20, which would create recommended best practices for candidates running for Bar offices. The guidelines would be advisory only but suggest limits on such things as campaign spending and candidate communications with members.

While the guidelines are designed to promote civility, they would allow candidates to, “point out an opponent’s failure to follow the best practices.”

The Program Evaluation Committee is also expected to present evaluations of the Practice Resource Institute and the Diversity Inclusion Committee. A PEC evaluation of The Florida Bar Media Awards should be ready by May.

[Revised: 03-20-2018]