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Bar proposes new rules on who may call themselves ‘experts’

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Bar proposes new rules on who may call themselves ‘experts’

Rules allowing lawyers who are not board certified to say in advertising that they are experts or specialize in an area of law have been approved by the Bar Board of Governors.

The board passed the amendments to Bar Rule 4-7.14 on the recommendation of the Board Review Committee on Professional Ethics. The changes were made pursuant to a federal judge’s ruling last year that the Bar rule prohibiting non-certified lawyers from saying in advertisements they are experts, specialize in a certain area, or use similar words is unconstitutional.

BRCPE Chair Carl Schwait said the court did uphold the Bar’s requirement that any past results referred to in an advertisement had to be objectively verifiable.

Under the redrafted rule, a non-certified lawyer can claim to be an expert or specialist if “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in Chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.”

The comment to the rule was also amended to read: “A lawyer who is not certified by The Florida Bar, by another state bar with comparable standards, or an organization accredited by the American Bar Association or The Florida Bar may not be described to the public as a ‘specialist,’ ‘specializing,’ being an ‘expert,’ having ‘expertise,’ or any variation of similar import unless the lawyer meets standards reasonably comparable to the certification standards set forth in Chapter 6 of these rules and the statement is accompanied by a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the area of claimed specialization or expertise is or falls within an area of certification under Florida’s certification plan.”

Schwait said the underlying case involved a medical malpractice attorney with 30 years experience who wanted to say he is an expert, but could not because the Bar does not offer certification for medical malpractice (although it does for civil trial).

“If in fact a [non-certified] attorney in the future wants to say they are an expert, they can come forward and use that in their advertising, but if in fact the staff or the Bar wants some more information, they will have to come forward and show objectively verifiable information. That would be a decision on a case-by-case basis by our staff,” Schwait said.

He said if the lawyer is claiming expertise in an area or sub-area covered by a Bar or other qualifying entity’s certification program, then the ad must have a disclaimer that the lawyer is not board certified by the Bar or those other organizations.

Board member Ian Comisky suggested the proposed commentary be further changed to clarify that the peer review and testing that certified lawyers go through are not required for lawyers claiming specialization or expertise if they can meet the other standards for certification. Schwait agreed to add that to the comment.

The board acted at its May 20 meeting in Manalapan. The rule amendment now goes to the Florida Supreme Court.