In Re: Amendments to Rules Regulating The Florida Bar - Subchapter 4-7 Information About Legal Services

Supreme Court of Florida
____________
No. SC2022-1294
____________
IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA
BAR – SUBCHAPTER 4-7 INFORMATION ABOUT LEGAL
SERVICES.
June 22, 2023
PER CURIAM.
The Florida Bar (Bar) petitions this Court to amend
subchapter 4-7 (Information About Legal Services) of the Rules
Regulating The Florida Bar (Bar Rules). 1 Specifically, the Bar
proposes amending Bar Rules 4-7.12 (Required Content), 4-7.13
(Deceptive and Inherently Misleading Advertisements), 4-7.14
(Potentially Misleading Advertisements), 4-7.16 (Presumptively Valid
Content), 4-7.18 (Direct Contact with Prospective Clients), and 4-
7.22 (Referrals, Directories and Pooled Advertising).
1. We have jurisdiction. See art. V, § 15, Fla. Const.; see also
R. Regulating Fla. Bar 1-12.1.
The Bar’s proposals were approved by the Board of Governors
of The Florida Bar, and consistent with Bar Rule 1-12.1(g), the Bar
published formal notice of the proposed amendments in The Florida
Bar News. The notice directed interested parties to file comments
directly with the Court. No comments were received. Having
considered the Bar’s petition, the Court hereby amends the Rules
Regulating The Florida Bar as proposed. The more significant
amendments are discussed below.
First, in Bar Rules 4-7.12, 4-7.13, 4-7.14, and 4-7.18, we
replace the phrases “reasonably prominent” and “prominently
displayed” with “clear and conspicuous” to describe how required
information and disclaimers in advertisements must appear.
Next, in subdivision (b)(5) of Bar Rule 4-7.13, we delete
language requiring the use of a specific disclaimer to resolve an
erroneous impression that the person speaking or shown is the
advertising lawyer. Instead, we amend the subdivision to allow
lawyers discretion in creating a “clear and conspicuous disclaimer
that the person is not an employee or member of the law firm.”
Similarly, in subdivision (b)(6) of Bar Rule 4-7.13, we delete
language requiring the use of a specific disclaimer indicating that
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the depiction is a dramatization and not an actual event and further
amend the subdivision to allow a lawyer to create a “clear and
conspicuous disclaimer that it is a dramatization of either a real or
fictitious event.” Likewise, we amend subdivision (b)(7) of rule 4-
7.13, by eliminating the requirement that lawyers use a specific
disclaimer to indicate that an actor is used to portray a person in
the occupation or profession. Instead, lawyers now have discretion
to create a “clear and conspicuous disclaimer that the
advertisement is using an actor to portray a person in the
occupation or profession.”
Additionally, in Bar Rule 4-7.14(a)(4)(B), we delete the
requirement that lawyers certified by a specialty certification
program accredited by the American Bar Association but not The
Florida Bar must include the disclaimer “Not Certified as a
Specialist by The Florida Bar.” This disclaimer is unnecessary
because the subdivision already requires advertisements claiming
board certification to include the certifying entity and area of
certification.
Further, we delete subdivision (b)(2)(E) of Bar Rule 4-7.18,
which required lawyers to include as the first sentence in all
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targeted direct written solicitations: “If you have already retained a
lawyer for this matter, please disregard this letter.” This
requirement is unnecessary as lawyers are permitted to give second
opinions to individuals already represented by counsel and
subdivision (b)(1)(B) of the rule still prohibits lawyers from sending
direct written solicitations if he or she knows or reasonably should
know that the individual is represented.
Last, Bar Rule 4-7.22 is amended to include new subdivision
(d)(12), which precludes a lawyer from participating in a qualifying
provider that has fewer than four participating lawyers from
different law firms. Creating this minimum will prevent an
individual lawyer from misleading the public by advertising in the
guise of a qualifying provider but funneling clients directly to a
single firm.
Accordingly, the Rules Regulating The Florida Bar are
amended as set forth in the appendix to this opinion. New language
is indicated by underscoring; deletions are indicated by struck-
through type. The amendments shall become effective August 21,
2023, at 12:01 a.m.
It is so ordered.
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MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
and FRANCIS, JJ., concur.
SASSO, J., did not participate.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules Regulating The Florida Bar
Joshua E. Doyle, Executive Director, Gary S. Lesser, President,
F. Scott Westheimer, President-elect, and Elizabeth Clark Tarbert,
Division Director, Lawyer Regulation, The Florida Bar, Tallahassee,
Florida,
for Petitioner
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APPENDIX
RULE 4-7.12. REQUIRED CONTENT
(a) – (c) [No Change]
(d) Clear and Conspicuous and Legibility. Any information
required by these rules to appear in an advertisement must be
reasonably prominentclear and conspicuous and must be clearly
legible if written, or intelligible if spoken. Information is clear and
conspicuous if it is written, displayed, or presented in such a way
that a reasonable person should notice it.
Comment
Name of Lawyer or Lawyer Referral Servicelawyer or lawyer
referral service
All advertisements are required to contain the name of at least 1
lawyer who is responsible for the content of the advertisement. For
purposes of this rule, including the name of the law firm is
sufficient. A lawyer referral service, qualifying provider or lawyer
directory must include its actual legal name or a registered
fictitious name in all advertisements in order to comply with this
requirement.
Geographic Locationlocation
For the purposes of this rule, a bona fide office is defined as a
physical location maintained by the lawyer or law firm where the
lawyer or law firm reasonably expects to furnish legal services in a
substantial way on a regular and continuing basis.
An office in which there is little or no full-time staff, the lawyer is
not present on a regular and continuing basis, and where a
substantial portion of the necessary legal services will not be
provided, is not a bona fide office for purposes of this rule. An
advertisement cannot state or imply that a lawyer has offices in a
location where the lawyer has no bona fide office. However, an
advertisement may state that a lawyer is “available for consultation”
or “available by appointment” or has a “satellite” office at a location
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where the lawyer does not have a bona fide office, if the statement is
true.
Referrals to Other Lawyersother lawyers
If the advertising lawyer knows at the time the advertisement is
disseminated that the lawyer intends to refer some cases generated
from an advertisement to another lawyer, the advertisement must
state that fact. An example of an appropriate disclaimer is as
follows: “Your case may be referred to another lawyer.”
Language of Advertisementadvertisement
Any information required by these rules to appear in an
advertisement must appear in all languages used in the
advertisement. If a specific disclaimer is required in order to avoid
the advertisement misleading the viewer, the disclaimer must be
made in the same language that the statement requiring the
disclaimer appears.
Clear and conspicuous
Information required by these rules to appear in an
advertisement must be clear and conspicuous. If a disclaimer is
required to modify specific written text, generally it will be clear and
conspicuous if it receives equal or greater prominence,
presentation, and placement and appears in close proximity relative
to the text to be modified. For example, if a disclaimer is required
to modify specific written text, generally it will be clear and
conspicuous if it appears in the same or larger size text and
immediately together with the text to be modified. If a disclaimer is
required to modify spoken words, generally it will be clear and
conspicuous if spoken at the same volume, tone, and speed as the
words it modifies. If a disclaimer appears in text to modify spoken
words, generally it will be clear and conspicuous if displayed in
sufficiently large text that a reasonable person should notice it, at
the same time the words it modifies are spoken, and for the
duration of the time as the words it modifies. The overarching
consideration for required information or a disclaimer is that
consumers notice it, read or hear it, and understand it.
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RULE 4-7.13. DECEPTIVE AND INHERENTLY MISLEADING
ADVERTISEMENTS
A lawyer may not engage in deceptive or inherently misleading
advertising.
(a) [No Change]
(b) Examples of Deceptive and Inherently Misleading
Advertisements. Deceptive or inherently misleading
advertisements include, but are not limited to, advertisements that
contain:
(1) [No Change]
(2) references to past results, unless the information is
objectively verifiable, subject to rule 4-7.14;
(3) – (4) [No Change]
(5) a voice or image that creates the erroneous impression
that the person speaking or shown is the advertising lawyer or a
lawyer or employee of the advertising firm. The following notice,
prominently displayed would resolve the erroneous impression:
“Not, unless the advertisement contains a clear and conspicuous
disclaimer that the person is not an employee or member of the
law firm”;
(6) a dramatization of an actual or fictitious event that a
reasonable viewer would not know is a dramatization from the
context of the advertisement, unless the dramatization contains
the following prominentlya clear and conspicuous displayed
notice: “DRAMATIZATION. NOT AN ACTUAL EVENT” disclaimer
that it is a dramatization of either a real or fictitious event;
(7) an actor purporting to be engaged in a particular
profession or occupation, unless that a reasonable viewer would
not know is a fictitious portrayal, unless the advertisement
includes the following prominentlya clear and conspicuous
displayed notice: “ACTOR. NOT ACTUAL [ . . . . ]”disclaimer that
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the advertisement is using an actor to portray a person in the
occupation or profession;
(8) statements, trade names, telephone numbers, Internet
addresses, images, sounds, videos, or dramatizations that state
or imply that the lawyer will engage in conduct or tactics that are
prohibited by the Rules of Professional Conduct or any law or
court rule;
(9) a testimonial:
(A) – (B) [No Change]
(C) that is not representative ofdoes not represent what
clients of that lawyer or law firm generally experience;
(D) – (F) [No Change]
(10) a statement or implication that The Florida Bar has
approved an advertisement or a lawyer, except a statement that
the lawyer is licensed to practice in Florida or has been certified
pursuant tounder chapter 6, Rules Regulating The Florida Bar;
(11) – (12) [No Change]
Comment
Material omissions
[No Change]
Implied existence of nonexistent fact
[No Change]
Predictions of success
[No Change]
Past results
[No Change]
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Comparisons
[No Change]
Characterization of skills, experience, reputation, or record
[No Change]
Areas of practice
[No Change]
Dramatizations
A re-creation or staging of an event where it is not clear from the
context of the advertisement that the portrayal is a re-creation or
staging of an event must contain a prominently clear and
conspicuous displayed disclaimer, “DRAMATIZATION. NOT AN
ACTUAL EVENT.” For example, a re-creation of a car accident must
contain thean appropriate clear and conspicuous disclaimer if the
context of the advertisement makes the re-creation appear to be a
matter handled by that law firm. A re-enactment of lawyers visiting
the re-construction of an accident scene must contain thean
appropriate clear and conspicuous disclaimer if it is not clear from
the advertisement that it is a re-enactment.
If an actor is used in an advertisement purporting to be engaged
in a particular profession or occupation who is acting as a
spokesperson for the lawyer or in any other circumstances where
the viewer could be misled, a disclaimer must be used. However, an
authority figure such as a judge or law enforcement officer, or an
actor portraying an authority figure, may not be used in an
advertisement to endorse or recommend a lawyer, or to act as a
spokesperson for a lawyer under rule 4-7.15.
Implying lawyer will violate rules of conduct or law
[No Change]
Testimonials
[No Change]
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Florida bar approval of ad or lawyer
[No Change]
Judicial, executive, and legislative titles
[No Change]
Implication of association or affiliation with another lawyer or
law firm
[No Change]
RULE 4-7.14. POTENTIALLY MISLEADING ADVERTISEMENTS
[No Change]
(a) Potentially Misleading Advertisements. Potentially
misleading advertisements include, but are not limited to:
(1) – (3) [No Change]
(4) a statement that a lawyer is board certified or other
variations of that term unless:
(A) the lawyer has been certified under the Florida
Certification Plan as set forth in chapter 6, Rules Regulating
theThe Florida Bar, and the advertisement includes the area of
certification and that The Florida Bar is the certifying
organization;
(B) the lawyer has been certified by an organization whose
specialty certification program has been accredited by the
American Bar Association or The Florida Bar as provided
elsewhere in these rules. A lawyer certified by a specialty
certification program accredited by the American Bar
Association but not The Florida Bar must include the
statement “Not Certified as a Specialist by The Florida Bar” in
reference to the specialization or certification. All such
advertisements must include and the advertisement includes
the area of certification and the name of the certifying
organization; or
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(C) [No Change]
(5) [No Change]
(6) a statement that a law firm specializes or has expertise in
an area of practice, or other variations of those terms, unless the
law firm can objectively verify the claim as to at least 1 of the
lawyers who are members of or employed by the law firm as set
forth in subdivision (a)(5) above, but if the law firm cannot
objectively verify the claim for every lawyer employed by the firm,
the advertisement must contain a reasonably prominentclear and
conspicuous disclaimer that not all lawyers in the firm specialize
or have expertise in the area of practice in which the firm claims
specialization or expertise; or
(7) [No Change]
(b) [No Change]
Comment
Awards, honors, and ratings
[No Change]
Claims of board certification, specialization, or expertise
This rule permits a lawyer or law firm to indicate areas of
practice in communications about the lawyer’s or law firm’s
services, provided the advertising lawyer or law firm actually
practices in those areas of law at the time the advertisement is
disseminated. If a lawyer practices only in certain fields, or will not
accept matters except in those fields, the lawyer is permitted to
indicate that. A lawyer also may indicate that the lawyer
concentrates in, focuses on, or limits the lawyer’s practice to
particular areas of practice as long as the statements are true. 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 “certified” or “board certified” or any variation of
similar import.
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Certification is specific to individual lawyers; a law firm cannot
be certified in an area of practice per subdivision (c) of rule 6-3.4.
Therefore, an advertisement may not state that a law firm is
certified in any area of practice.
A lawyer can only state or imply that the lawyer is “certified” in
the actual area(s) of practice in which the lawyer is certified. A
lawyer who is board certified in civil trial law, may state that, but
may not state that the lawyer is certified in personal injury.
The criteria set forth in the Florida Certification Plan are
designed to establish a reasonable degree of objectivity and
uniformity so that the use of the terms “specialization,” “expertise,”
or other variations of those terms, conveys some meaningful
information to the public, and is not misleading. A lawyer who
meets the criteria for certification in a particular field automatically
qualifies to state that the lawyer is a specialist or expert in the area
of certification. However, a lawyer making a claim of specialization
or expertise is not required to be certified in the claimed field of
specialization or expertise or to have met the specific criterion for
certification if the lawyer can demonstrate that the lawyer has the
education, training, experience, or substantial involvement in the
area of practice commensurate with specialization or expertise.
A law firm claim of specialization or expertise may be based on 1
lawyer who is a member of or employed by the law firm either
having the requisite board certification or being able to objectively
verify the requisite qualifications enumerated in this rule. For
purposes of this rule, a lawyer’s “of counsel” relationship with a law
firm is a sufficiently close relationship to permit a law firm to claim
specialization or expertise based on the “of counsel” lawyer’s board
certification or qualifications only if the “of counsel” practices law
solely through the law firm claiming specialization or expertise and
provides substantial legal services through the firm as to allow the
firm to reasonably rely on the “of counsel” qualifications in making
the claim.
A disclaimer that not all lawyers in the firm specialize or have
expertise when a firm claims specialization or expertise is clear and
conspicuous when it is written, displayed, or presented in the same
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or larger text if appearing immediately together with the text
making the claim of firm specialization or expertise; spoken in the
same volume, tone, and speed as the claim of firm specialization or
expertise and at the same time as or immediately after the claim of
firm specialization or expertise if spoken aloud; or any other way
that a reasonable consumer should notice it, read or hear it, and
understand it.
Fee and cost information
[No Change]
RULE 4-7.16. PRESUMPTIVELY VALID CONTENT
[No Change]
(a) Lawyers and Law Firms. A lawyer or law firm may include
the following information in advertisements and unsolicited written
communications:
(1) the name of the lawyer or law firm subject to the
requirements of this rule and rule 4-7.21, a listing of lawyers
associated with the firm, office locations and parking
arrangements, disability accommodations, telephone numbers,
website addresses, and electronic mail addresses, office and
telephone service hours, social media contact information
including social media icons or logos, and a designation such as
“attorney” or “law firm”;
(2) – (5) [No Change]
(6) fields of law in which the lawyer practices, including
official certification logos, subject to the requirements of
subdivision (a)(4) of rule 4-7.14this subchapter regarding use of
terms such as certified, specialist, and expert;
(7) – (8) [No Change]
(9) fee for initial consultation and fee schedule, subject to the
requirements of subdivisions (a)(5) of rule 4-7.14this subchapter
regarding cost disclosures and honoring advertised fees;
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(10) – (12) [No Change]
(b) Lawyer Referral Services and Qualifying Providers. A
lawyer referral service or qualifying provider may advertise its
name, location, telephone number, the fee charged, its hours of
operation, the process by which referrals or matches are made, the
areas of law in which referrals or matches are offered, the
geographic area in which the lawyers practice to whom those
responding to the advertisement will be referred or matched. The
Florida Bar’s lawyer referral service or a lawyer referral service
approved by The Florida Bar under chapter 8 of the Rules
Regulating theThe Florida Bar also may advertise the logo of its
sponsoring bar association and its nonprofit status.
Comment
[No Change]
RULE 4-7.18. DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) [No Change]
(b) Written Communication.
(1) [No Change]
(2) Written communications to prospective clients for the
purpose of obtaining professional employment that are not
prohibited by subdivision (b)(1) are subject to the following
requirements:
(A) [No Change]
(B) Each separate enclosure of the communication and the
face of an envelope containing the communication must be
reasonably prominentlyclearly and conspicuously marked
“advertisement.” in ink that contrasts with both the
background it is printed on and other text appearing on the
same page. If the written communication is in the form of a
self-mailing brochure or pamphlet, the “advertisement” mark
must be reasonably prominentlyclearly and conspicuously
marked on the address panel of the brochure or pamphlet, on
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the inside of the brochure or pamphlet, and on each separate
enclosure. If the written communication is sent via electronic
mailemail, the subject line of the email must begin with the
word “Advertisement.,” and any attachment to the email must
also be clearly and conspicuously marked “advertisement.”
The term “advertisement” is sufficiently clear and conspicuous
if it is written, displayed, or presented in larger and
contrasting text relative to other text appearing on the page or
any other way that a reasonable consumer should notice it.
(C) Every written communication must be accompanied
byinclude a written statement detailing the background,
training and experience of the lawyer or law firm. This
statement must include information about the specific
experience of the advertising lawyer or law firm in the area or
areas of law for which professional employment is sought.
Every written communication disseminated by a lawyer
referral service must be accompanied byinclude a written
statement detailing the background, training, and experience
of each lawyer to whom the recipient may be referred.
(D) If a contract for representation is mailed
withaccompanies the written communication, the top of each
page of the contract must be marked “SAMPLE” in red ink in a
type size one size larger than the largest type used in the
contract and the words “DO NOT SIGN” must appear on the
client signature line.
(E) The first sentence of any written communication
prompted by a specific occurrence involving or affecting the
intended recipient of the communication or a family member
must be: “If you have already retained a lawyer for this matter,
please disregard this letter.”
(FE) Written communications must not be made to
resemble legal pleadings or other legal documents.
(GF) If a lawyer other than the lawyer whose name or
signature appears on the communication will actually handle
the case or matter, or if the case or matter will be referred to
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another lawyer or law firm, any written communication
concerning a specific matter must include a statement so
advising the client.
(HG) Any written communication prompted by a specific
occurrence and directed to a recipient that the lawyer knows
or reasonably should know directly involving or
affectinginvolves or affects the intended recipient of the
communication or a family member must disclose how the
lawyer obtained the information prompting the
communication. The disclosure required by this rule must be
specific enough to enable the recipient to understand the
extent of the lawyer’s knowledge regarding the recipient’s
particular situation.
(IH) A written communication seeking employment by a
specific prospective client prompted by a specific occurrence
and directed to a recipient that the lawyer knows or
reasonably should know directly involves or affects the
intended recipient or a family member in a specific matter
must not reveal on the envelope, or on the outside of a self-
mailing brochure or pamphlet, the nature of the
client’srecipient’s legal problem.
(3) [No Change]
Comment
Permissible contact
[No Change]
Prior professional relationship
[No Change]
Disclosing where the lawyer obtained information
[No Change]
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Disclosing the nature of the prospective client’s legal problem
This requirement does not apply where a written communication
is prompted by a specific occurrence with widespread impact, such
as a hurricane or a flood, where although the communication has
been prompted by a specific occurrence, the lawyer neither knows
nor has reason to know that the intended recipient was in fact
affected by the specific occurrence.
Group or prepaid legal services plans
[No Change]
RULE 4-7.22. REFERRALS, DIRECTORIES AND POOLED
ADVERTISING
(a) Applicability of Rule. A lawyer is prohibited from
participation with any qualifying provider that does not meet the
requirements of this rule and any other applicable Rule Regulating
theThe Florida Bar.
(b) – (c) [No Change]
(d) When Lawyers May Participate with Qualifying Providers.
A lawyer may participate with a qualifying provider as defined in
this rule only if the qualifying provider:
(1) – (9) [No Change]
(10) affirmatively discloses to the prospective client at the time
a referral, match or other connection is made of the location of a
bona fide office by city, town or county of the lawyer to whom the
referral, match or other connection is being made; and
(11) does not use a name or engage in any communication
with the public that could lead prospective clients to reasonably
conclude that the qualifying provider is a law firm or directly
provides legal services to the public; and
(12) has lawyers from at least 4 different law firms
participating in the panel or group of lawyers to whom clients are
referred.
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(e) [No Change]
Comment
[No Change]
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