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Agenda takes shape for board’s October meeting

Senior Editor Regular News

Agenda takes shape for board’s October meeting

Senior Editor

The Board of Governors could move a significant step closer to settling a debate over the way lawyers and law firms advertise their specialties when it convenes October 12 on Amelia Island.

At the center of the dispute, which has been simmering since 2013, is Rule 4-7.14, “Potentially Misleading Advertising.” It bans non-certified lawyers and law firms from advertising themselves as “experts” or “specialists.”

But in a 2014 federal challenge brought by Searcy, Denny, Scarola, Barnhart and Shipley, U.S. District Judge Robert Hinkle ruled that the ban violates First Amendment speech rights. Hinkle declared the rule unfair to attorneys who have the same level of expertise as their board-certified brethren, or who are experts in areas of the law where no board certification program exists, and enjoined the Bar from enforcing it.

The Board of Governors has been working ever since to amend the rule to comply with the order while satisfying the concerns of the Florida Supreme Court.

Justices rejected an initial proposed amendment that would have allowed non-certified lawyers and law firms to call themselves “experts” or “specialists” if they essentially met the same requirements for board certification.

“We are concerned that the Bar’s proposal here does not sufficiently address the district court’s decision, and that the language requiring that a lawyer’s experience be ‘reasonably comparable’ to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications,” justices wrote in their unanimous, per curium opinion. “Because we believe that this important issue requires further study, we decline to adopt the Bar’s proposed amendments to Rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.”

The board will consider a new proposed amendment that removes parts of the rule that the judge banned, and adds new subdivisions. They would allow non-certified attorneys to call themselves “specialist” or “experts” if they can objectively verify the claim based on the lawyer’s education, training, experience, and “substantial involvement” in the area of practice. The amendment also would allow law firms to do the same if they can objectively verify the claim for at least one lawyer in the firm. However, the firm would have to post a disclaimer that not all firm members meet the same standards, if they fail to do so.

In other action:

The Board could consider Proposed Advisory Opinion 17-1 regarding payment methods for lawyers who participate with “LRS/QP,” or lawyer referral services/qualifying providers.

Recently approved by the Board Review Committee on Professional Ethics, the PAO states that “lawyers are permitted to participate with a for-profit qualifying provider only if the qualifying providers meet specific requirements set forth in Rule 4-7.22(d).”

The opinion refers to a comment section that bars attorneys from participating with any qualifying provider that receives any fee that constitutes a division of legal fees with the lawyer, “unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to Chapter 8 of these rules.”

The proposed opinion goes on to say, “a fee calculated as a percentage of the fee received by a lawyer, or based on the success or perceived values of the case, would be an improper division of fees.”

It says an improper division of fees occurs, “when the qualifying provider directs, regulates, or influences the lawyer’s professional judgment…”

The proposed opinion stresses that each case would have to be weighed on its own merits because of the wide array of fee arrangements available in the digital marketing arena. However, it says the following fee arrangements would be “generally permissible.”

• A reasonable, pre-arranged fixed charge per time period such as weekly, monthly, or yearly.

• A reasonable, pre-arranged fixed charge for each time a consumer views information about a specific lawyer, commonly referred to as “pay per click.”

• A reasonable, pre-arranged fixed charge per matter referred to the lawyer that is not contingent on the outcome of the matter and does not vary based on the amount at issue in the matter.

• A reasonable, pre-arranged fixed charge per matter referred to the lawyer that varies based on the type of matter only if the varying charge is based on demonstrably different marketing and administrative costs rather than the perceived value of the case.

The opinion goes on to list the following arrangements as “generally impermissible.”

• A charge calculated as a percentage of the fee received by a lawyer.

• A charge calculated as a percentage of the client’s recovery in the matter.

• A charge based on the perceived value of the case referred to or accepted by a participating lawyer;

• A flat charge that differs based on the perceived value of the case referred to or accepted by the participating lawyer;

• A flat charge per case accepted by a participating lawyer; and

• A flat charge per case accepted by a participating lawyer that differs based on the type of matter (e.g., personal injury versus family law).

If approved, the proposed opinion will be published for comment. The board will consider the comments.