Proposed amendments to Bar Rules 4-7.19, 4-7.20, 4-8.6, and 4-7.19
The Board of Governors of The Florida Bar gives notice of filing with the Supreme Court of Florida, on or about January 3, 2025, a petition to amend the Rules Regulating The Florida Bar. The full text of the proposed amendments is below. Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition. Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.
RULE 4-7.19 EVALUATION OF ADVERTISEMENTS
In subdivision (h), deletes the specific dollar amount and adds “set by the bar’s executive director as approved by the Board of Governors.” Also adds that The Florida Bar will provide the Florida Supreme Court with 30 days’ notice prior to the effectiveness of any increase in the amount of a fee or the imposition of any new fee.
RULE 4-7.20 EXEMPTIONS FROM THE FILING AND REVIEW REQUIREMENT
Adds new subdivision (h) creating an exemption for advertisements and other communications regarding legal services made by legal aid organizations.
RULE 4-8.6 AUTHORIZED BUSINESS ENTITIES
Within subdivision (a), adds not-for-profit authorized business entity as defined elsewhere in the Rules Regulating The Florida Bar.
RULE 4-7.19 EVALUATION OF ADVERTISEMENTS
(a) Filing Requirements. Subject to the exemptions stated in rule 4-7.20, any lawyer who advertises services must file with The Florida Bar a copy of each advertisement at least 20 days prior to the lawyer’s first dissemination of the advertisement. The advertisement must be filed with The Florida Bar in the manner specified by The Florida Bar as posted on its website.
(b) Evaluation by The Florida Bar. The Florida Bar will evaluate all advertisements filed with it under this rule for compliance with the applicable provisions set forth in rules 4-7.11 through 4-7.15 and 4-7.18(b)(2). If The Florida Bar does not send any communication to the filer within 15 days of receipt by The Florida Bar of a complete filing, or within 15 days of receipt by The Florida Bar of additional information when requested within the initial 15 days, the lawyer will not be subject to discipline by The Florida Bar, except if The Florida later notifies the lawyer of noncompliance, the lawyer may be subject to discipline for dissemination of the advertisement after the notice of noncompliance.
(c) Preliminary Opinions. A lawyer may obtain an advisory opinion concerning the compliance of a contemplated advertisement prior to production of the advertisement by submitting to The Florida Bar a draft or script that includes all spoken or printed words appearing in the advertisement, a description of any visual images to be used in the advertisement, and the fee specified in this rule. The voluntary prior submission does not satisfy the filing and evaluation requirements of these rules, but once completed, The Florida Bar will not charge an additional fee for evaluation of the completed advertisement.
(d) Opinions on Exempt Advertisements. A lawyer may obtain an advisory opinion concerning the compliance of an existing or contemplated advertisement intended to be used by the lawyer seeking the advisory opinion that is not required to be filed for review by submitting the material and fee specified in this rule to The Florida Bar, except that a lawyer may not file an entire website for review. Instead, a lawyer may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website.
(e) Facial Compliance. Evaluation of advertisements is limited to determination of facial compliance with rules 4-7.11 through 4-7.15 and 4-7.18(b)(2), and notice of compliance does not relieve the lawyer of responsibility for the accuracy of factual statements.
(f) Notice of Compliance and Disciplinary Action. A finding of compliance by The Florida Bar will be binding on The Florida Bar in a grievance proceeding unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement. The Florida Bar has a right to change its finding of compliance and, in those circumstances, must notify the lawyer of the finding of noncompliance, after which the lawyer may be subject to discipline for continuing to disseminate the advertisement. A lawyer will be subject to discipline as provided in these rules for:
(1) failing to timely file the advertisement with The Florida Bar;
(2) disseminating a noncompliant advertisement in the absence of a finding of compliance by The Florida Bar;
(3) filing an advertisement that contains a misrepresentation that is not apparent from the face of the advertisement;
(4) disseminating an advertisement for which the lawyer has a finding of compliance by The Florida Bar more than 30 days after the lawyer has been notified that The Florida Bar has determined that the advertisement does not comply with this subchapter; or
(5) disseminating portions of a lawyer’s Internet website(s) that are not in compliance with rules 4-7.14 and 4-7.15 only after 15 days have elapsed since the date of The Florida Bar’s notice of noncompliance sent to the lawyer’s official bar address.
(g) Notice of Noncompliance. If The Florida Bar determines that an advertisement does not comply with the applicable rules, The Florida Bar will advise the lawyer that dissemination or continued dissemination of the advertisement may result in professional discipline.
(h) Contents of Filing. A filing with The Florida Bar as required or permitted by this rule must include:
(1) a copy of the advertisement in the form or forms in which it is to be disseminated, that is readily capable of duplication by The Florida Bar (e.g., video, audio, print media, photographs of outdoor advertising);
(2) a transcript, if the advertisement is in electronic format;
(3) a printed copy of all text used in the advertisement, including both spoken language and on-screen text;
(4) an accurate English translation of any portion of the advertisement that is in a language other than English;
(5) a sample envelope in which the written advertisement will be enclosed, if the advertisement is to be mailed;
(6) a statement listing all media in which the advertisement will appear, the anticipated frequency of use of the advertisement in each medium in which it will appear, and the anticipated time period during which the advertisement will be used;
(7) the name of at least 1 lawyer who is responsible for the content of the advertisement;
(8) a fee paid to The Florida Bar, in an amount of $150 for each advertisement timely filed as provided in this rule, or $250 for each advertisement not timely filed, which set by the bar’s executive director as approved by the Board of Governors. The Florida Bar will provide the Florida Supreme Court with 30 days’ notice prior to the effectiveness of any increase in the amount of a fee or the imposition of any new fee. These fees will be used to offset the cost of evaluation and review of advertisements submitted under these rules and the cost of enforcing these rules; and
(9) additional information as necessary to substantiate representations made or implied in an advertisement if requested by The Florida Bar.
(i) Change of Circumstances; Refiling Requirement. If a change of circumstances occurs after The Florida Bar evaluates an advertisement that raises a substantial possibility that the advertisement has become false or misleading as a result of the change in circumstances, the lawyer must promptly re-file the advertisement or a modified advertisement in the manner specified by The Florida Bar as posted on its website along with an explanation of the change in circumstances and an additional fee set by the Board of Governors, which will not exceed $100.
(j) Maintaining Copies of Advertisements. A copy or recording of an advertisement must be submitted to The Florida Bar under this rule, and the lawyer must retain a copy or recording for 3 years after its last dissemination along with a record of when and where it was used. If identical advertisements are sent to 2 or more prospective clients, the lawyer may comply with this requirement by filing 1 of the identical advertisements and retaining for 3 years a single copy, together with a list of the names and addresses of persons to whom the advertisement was sent.
Comment
All advertisements must be filed for review under this rule, unless the advertisement is exempt from filing under rule 4-7.20. Even where an advertisement is exempt from filing under rule 4-7.20, a lawyer who wishes to obtain a safe harbor from discipline may submit the lawyer’s advertisement that is exempt from the filing requirement and obtain The Florida Bar’s opinion before disseminating the advertisement. A lawyer who files an advertisement and obtains a notice of compliance is therefore immune from grievance liability, unless the advertisement contains a misrepresentation that is not apparent from the face of the advertisement. Subdivision (d) of this rule precludes a lawyer from filing an entire website as an advertising submission, but a lawyer may submit a specific page, provision, statement, illustration, or photograph on a website. A lawyer who wishes to rely on The Florida Bar’s opinion as demonstrating the lawyer’s good faith effort to comply with these rules has the responsibility of supplying The Florida Bar with all information necessary to determine whether an advertisement is false or misleading.
RULE 4-7.20 EXEMPTIONS FROM THE FILING AND REVIEW REQUIREMENT
The following are exempt from the filing requirements of rule 4-7.19:
(a) an advertisement in any of the public media that contains no illustrations and no information other than that set forth in rule 4-7.16;
(b) a brief announcement that identifies a lawyer or law firm as a contributor to a specified charity or as a sponsor of a public service announcement or a specified charitable, community, or public interest program, activity, or event, provided that the announcement contains no information about the lawyer or law firm other than the permissible content of advertisements listed in rule 4-7.16, and the fact of the sponsorship or contribution. In determining whether an announcement is a public service announcement, the following criteria may be considered:
(1) whether the content of the announcement appears to serve the particular interests of the lawyer or law firm as much as or more than the interests of the public;
(2) whether the announcement concerns a legal subject;
(3) whether the announcement contains legal advice; and
(4) whether the lawyer or law firm paid to have the announcement published;
(c) a listing or entry in a law list or bar publication;
(d) a communication mailed only to existing clients, former clients, or other lawyers;
(e) a written or recorded communication requested by a prospective client;
(f) professional announcement cards stating new or changed associations, new offices, and similar changes relating to a lawyer or law firm, and that are mailed only to other lawyers, relatives, close personal friends, and existing or former clients; and
(g) information contained on the lawyer’s Internet website(s); and
(h) advertisements and other communications regarding legal services made by or on behalf of a legal aid organization, which is a not-for-profit business entity as defined elsewhere in these rules.
RULE 4-8.6 AUTHORIZED BUSINESS ENTITIES
(a) Authorized Business Entities. Lawyers may practice law in the form of professional service corporations, professional limited liability companies, sole proprietorships, general partnerships, or limited liability partnerships organized or qualified under applicable law, or not-for-profit authorized business entities as defined elsewhere in these rules. SuchThese forms of practice are authorized business entities under these rules.
(b) Practice of Law Limited to Members of The Florida Bar. No authorized business entity may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.
(c) Qualifications of Managers, Directors and Officers. No personOnly a person legally qualified to render legal services in Florida may serve as a partner, manager, director, or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state. For purposes of this rule the term “executive officer” includes the president, vice-president, or any other officer who performs a policy-making function. [NOTE: Ignore style changes. BRC is proposing amendments to subdivision (c) separately.]
(d) Violation of Statute or Rule. A lawyer is subject to disciplinary action if that lawyer violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Barwho, while acting as a shareholder, member, officer, director, partner, proprietor, manager, agent, or employee of an authorized business entity andthat is engaged in the practice of law in Florida, violates or sanctions the violation of the authorized business entity statutes or the Rules Regulating The Florida Bar will be subject to disciplinary action.
(e) Disqualification of Shareholder, Member, Proprietor, or Partner; Severance of Financial Interests. Whenever a shareholder of a professional service corporation, a member of a professional limited liability company, proprietor, or partner in a limited liability partnership becomes legally disqualified to render legal services in this state, saidthat shareholder, member, proprietor, or partner immediately must sever all employment with and financial interests in suchthe authorized business entity immediately. For purposes of this rule the term “legally disqualified” does not include suspension from the practice of law for a period of time less than 91 days. Severance of employment and financial interests required by this rule will not preclude the shareholder, member, proprietor, or partner from receiving compensation based on legal fees generated for legal services performed during the time when the shareholder, member, proprietor, or partner was legally qualified to render legal services in this state. This provision will not prohibit employment of a legally disqualified shareholder, member, proprietor, or partner in a position that does not render legal service nor payment to an existing profit sharing or pension plan to the extent permitted in rules 3-6.1 and 4-5.4(a)(3), or as required by applicable law.
(f) Cessation of Legal Services. Whenever all shareholders of a professional service corporation, or all members of a professional limited liability company, the proprietor of a solo practice, or all partners in a limited liability partnership become legally disqualified to render legal services in this state, the authorized business entity must cease the rendition ofrendering legal services in Florida.
(g) Application of Statutory Provisions. Unless otherwise provided in this rule, each shareholder, member, proprietor, or partner of an authorized business entity will possess all rights and benefits and will be subject to all duties applicable to suchthat shareholder, member, proprietor, or partner provided by the statutes pursuant tounder which the authorized business entity was organized or qualified.
Comment
In 1961, this court recognized the authority of the legislature to enact statutory provisions creating corporations, particularly professional service corporations. But this court also noted that “[e]nabling action by this Court is therefore an essential condition precedent to authorize members of The Florida Bar to qualify under and engage in the practice of their profession pursuant to The 1961 Act.” In Re The Florida Bar, 133 So. 2d 554, at 555 (Fla. 1961).
The same is true today, whatever the form of business entity created by legislative enactment. Hence, this rule is adopted to continue authorization forauthorizing members of the bar to practice law in the form of a professional service corporation, a professional limited liability company, or a limited liability partnership. This rule also permits a member of the bar to practice law as a sole proprietor or as a member of a general partnership. These types of entities are collectively referred to as authorized business entities.
Limitation on rendering legal services
No person may render legal services on behalf of an authorized business entity unless that person is otherwise authorized to do so via membership in the bar or through a motion for leave to appear. Neither the adoption of this rule nor the statutory provisions alter this limitation.
Employment by and financial interests in an authorized business entity
This rule and the statute require termination of employment of a shareholder, member, proprietor, or partner when samethat person is “legally disqualified” to render legal services. The purpose of this provision is to prohibit compensation based on fees for legal services rendered at a time when the shareholder, member, proprietor, or partner cannot render the same type of services. Continued engagement in capacities other than rendering legal services with the same or similar compensation would allow circumvention of prohibitions of sharing legal fees with one not qualified to render legal services. Other rules prohibit the sharing of legal fees with nonlawyers, and this rule continues the application ofto apply that type of prohibition. However, nothing in this rule or the statute prohibits payment to the disqualified shareholder, member, proprietor, or partner for legal services rendered while the shareholder, member, proprietor, or partner was qualified to render samethose legal services, even though payment for the legal services is not received until the shareholder, member, proprietor, or partner is legally disqualified.
Similarly, this rule and the statute require the severance of “financial interests” of a legally disqualified shareholder, member, proprietor, or partner. The same reasons apply to severance of financial interests as those that apply to severance of employment. Other provisions of these rules proscribe limits on employment and the types of duties that a legally disqualified shareholder, member, proprietor, or partner may be assigned.
Practical application of the statute and this rule to the requirements of the practice of law mandates exclusion of short term, temporary removal of qualifications to render legal services. Hence, any suspension of less than 91 days, including membership fees delinquency suspensions, is excluded from the definition of the term. These are temporary impediments to the practice of law are such thatresulting in automatic reinstatement to the practice of law with the passage of time or the completion of ministerial acts, the member of the bar is automatically qualified to render legal services. Severe tax consequences would result from forced severance and subsequent reestablishment (upon reinstatement of qualifications) of all financial interests in these instances.
However, the exclusion of suchexcluding these suspensions from the definition of the term does not authorize the payment to the disqualified shareholder, member, proprietor, or partner of compensation based on fees for legal services rendered during the time when the shareholder, member, proprietor, or partner is not personally qualified to render suchthe services. Continuing the employment of a legally disqualified shareholder, member, proprietor, or partner during the term of a suspension of less than 91 days requires the authorized business entity to take steps to avoid the practice of law by the legally disqualified shareholder, member, proprietor, or partner, the ability of the legally disqualified shareholder, member, proprietor, or partner to control the actions of members of the bar qualified to render legal services, and payment of compensation to the legally disqualified shareholder, member, proprietor, or partner based on legal services rendered while the legally disqualified shareholder, member, proprietor, or partner is not qualified to render them. Mere characterization of continued compensation, which is the same or similar to that the legally disqualified shareholder, member, proprietor, or partner received when qualified to render legal services, is not sufficient to satisfy the requirements of this rule.
Profit sharing or pension plans
To the extent that applicable law requires continued payment to existing profit sharing or pension plans, nothing in this rule or the statute may abridge suchthose payments. However, if permitted under applicable law, the amount paid to the plan for a legally disqualified shareholder, member, proprietor, or partner will not include payments based on legal services rendered while the legally disqualified shareholder, member, proprietor, or partner was not qualified to render legal services.
Interstate practice
This rule permits members of The Florida Bar to engage in the practice of law with lawyers licensed to practice elsewhere in an authorized business entity organized under the laws of another jurisdiction and qualified under the laws of Florida (or vice-versa), but nothing in this rule is intended to affect the ability of non-members of The Florida Bar to practice law in Florida. See, e.g., The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).
The terms qualified and legally disqualified are imported from the Professional Service Corporation Act (Chapter 621, Florida Statutes).
