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Final Report of the Advertising Task Force

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					APPENDIX D
 Final Report of the
Advertising Task Force
         2004




                         1
                   REPORT AND RECOMMENDATIONS
              TO THE FLORIDA BAR BOARD OF GOVERNORS
                 BY THE ADVERTISING TASK FORCE 2004




Respectfully submitted by the Advertising Task Force 2004

Mr. Manuel R. Morales, Jr., Chair, Miami
Mr. Charles Chobee Ebbets, Vice-chair, Daytona Beach
Mr. Basil L. Bain, Naples
Mr. John C. Bales, Tampa
Mr. Linzie F. Bogan, Tallahassee
Mr. John R. J. Bullard, Live Oak
Prof. Debra M. Curtis, Fort Lauderdale
Mr. William F. “Casey” Ebsary, Jr., Tampa
Mr. Michael R. Hammond, Orlando
Mr. Kelly K. Huang, Fort Myers
Mr. S. Curtis Kiser, Tallahassee
Ms. Rozalyn Landisburg, Hollywood
Mr. Theodore J. Leopold, Palm Beach Gardens
Mr. Halley Bronson Lewis, III, Tallahassee
Ms. Ann E. Meador, Pensacola
Mr. Shane T. Munoz, Tampa
Ms. Kelly A. O’Keefe, Tallahassee
Mr. John L. Remsen, Jr., Fort Lauderdale
Mr. Robert A. Rush, Gainesville
Mr. David L. Sellers, Pensacola
Mr. Bill Wagner, Tampa
Mr. Matthew R. Willard, Tallahassee



                                                            Appendix D - Page 1
Introduction

       The Advertising Task Force 2004 was appointed in February 2004 and given the

following charge:


       The Advertising Task Force 2004 is charged with reviewing the attorney
       advertising rules and recommending changes to the rules if deemed necessary,
       including any changes to clarify the meaning of the rules and provide notice to
       Florida Bar members of the rules= requirements. Included within this charge is an
       analysis of the advertising filing and review requirement, including consideration
       of mandatory review prior to dissemination of advertisements. The task force
       should expect to make a final report to The Florida Bar Board of Governors in
       year 2004-05.

The task force comprised lawyers with widely varying practice areas, backgrounds, experience,

and geographic location. The task force included lawyers who advertise extensively and lawyers

who do not advertise at all. The task force included three current members of the Standing

Committee on Advertising and two current members of The Florida Bar Board of Governors, all

of whom had varying degrees of experience interpreting the existing advertising rules.

       The task force met numerous times in person and by telephone conference. Copies of the

meeting minutes are attached as appendix A. The task force held an organizational meeting in

March 2004. The task force determined that its analysis must be completed by balancing three

interests: the protection of the public from false and misleading advertising, the protection

afforded to commercial speech by the First Amendment, and the protection of the justice system

and profession from denigration by improper advertising. Task force members agreed that the

rules should be clear and consistent. The task force determined to divide into subcommittees to

review the rules in depth, then meet as a group to review each subcommittee’s recommendations.

       The task force held a special meeting at The Florida Bar’s Annual Meeting and invited

lawyers to comment on the task force’s charge. Notices were posted in the Bar News and on the




                                                                                            Appendix D - Page 2
Bar’s website. The chair of the task force sent a letter to the chair of each Florida Bar section

and standing committee, as well as the voluntary bar associations, inviting comment on the task

force’s charge and any proposals by Bar members. A copy of the letter is attached as appendix

B. Numerous Bar members provided written comments and attended the meeting to provide

suggestions to the task force. A summary of written comments received is attached as appendix

C.

        The task force then drafted interim changes that were noticed in the Bar News and posted

on the Bar’s website. The task force sent a letter to the chair of each Florida Bar section and

standing committee, as well as the voluntary bar associations, inviting comment on the interim

draft. A copy of the letter is attached as appendix D. The task force held a special meeting in

conjunction with the Bar’s Midyear Meeting, reviewed numerous written comments, and heard

from numerous Bar members regarding various proposals. A summary of written comments

received is attached as appendix E. The task force then made final decisions on its

recommendations to the board. A summary of the significant recommendations appear below.

The full text of recommendations, in legislative format, appears at appendix F. Not all decisions

of the task force were unanimous. One task force member wrote a dissent, which is attached as

appendix G.

Significant Recommendations

4-7.1

        The task force discussed adding a definition of “advertising” or “advertisement” to this

general rule. Ultimately, the task force determined that defining “advertisement” was

counterproductive. Because of rapidly changing technology, any laundry list of

communications subject to the attorney advertising rules would likely be under-inclusive by the




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                                                                                              Appendix D - Page 3
effective date of a rule change. The task force instead decided to address communications not

covered by the rules, so lawyers would clearly be on notice that certain communications are not

covered by the rules. The task force therefore recommends the addition of new subdivisions (e)

through (h), which state that the attorney advertising rules do not apply to communications

between lawyers, between a lawyer and the lawyer’s own family members, between a lawyer and

the lawyer’s own current and former clients, and between a lawyer and a prospective client at

that prospective client’s request. To ensure members’ compliance with general standards

relating to their conduct, the task force also recommends adding new subdivision (i), which

states that lawyers cannot engage in conduct involving deceit or misrepresentation in any form of

communication, regardless of whether the communication is governed by the attorney

advertising rules. See Rule 4-8.4(c), Rules Regulating The Florida Bar. The task force also

recommends adding commentary that addresses these concepts.

       To complement the new proposed subdivision setting forth the communications not

covered by the attorney advertising rules, the task force also recommends adding new

subdivision (b), stating that subchapter 4-7 applies to Florida Bar members who advertise in

Florida. Existing subdivision (b) is renumbered as subdivision (d).

       The task force also extensively discussed the issue of lawyers licensed in other

jurisdictions advertising in Florida. In 1997, The Florida Bar asked the Supreme Court of

Florida to adopt rules changes that would require lawyers licensed in other jurisdictions who

advertise in Florida to comply with the Rules Regulating The Florida Bar governing lawyer

advertising. The court declined to adopt those rules changes, stating that such advertising in

Florida was the unlicensed practice of law. Amendments To Rules Regulating The Florida Bar -

Advertising Rules, 762 So. 2d 392 (Fla. 1999). The court then invited the Bar to submit




                                                 4
                                                                                            Appendix D - Page 4
amendments refining chapter 10 of the Rules Regulating The Florida Bar, which address the

unlicensed practice of law. Id. The Florida Bar did so, and the court adopted rule 10-2.1(a)(3) in

2002, which states as follows: “It shall constitute the unlicensed practice of law for a lawyer

admitted in a state other than Florida to advertise to provide legal services in Florida which the

lawyer is not authorized to provide.” Amendments to Rules Regulating the Florida Bar, 820 So.

2d 210 (Fla. 2002). That rule amendment left a loophole: the rule does not address advertising

by lawyers licensed in other jurisdictions advertising for services they are authorized to provide.

Although these areas are limited, it is incongruous to allow lawyers licensed in other

jurisdictions to disseminate advertisements that do not follow the strict requirements adopted by

the court to protect the residents of the state of Florida. The Special Commission on the

Multijurisdictional Practice of Law recommended changes to the Rules Regulating The Florida

Bar to address advertisements by out-of-state lawyers for authorized legal services. The Florida

Bar petitioned the court to adopt these and other changes in case number SC04-135. The task

force recommends adding new subdivision (c) that complements the pending rules changes.

New subdivision (c) states that subchapter 4-7 applies to out-of-state lawyers who have

established a regular practice in Florida to provide legal services they are authorized by law to

perform, and who advertise in Florida to provide those authorized services.

4-7.2

        Rule 4-7.2 sets forth the requirements that govern all lawyer advertising and unsolicited

direct mail. Probably the most extensive changes are made to this rule, in part because of the

length of the existing rule. Many changes are organizational, to provide greater clarity and

guidance in using the rule. The rule is reorganized to first set forth required information in

proposed subdivision (a), then permissible content in proposed subdivision (b), then general




                                                 5
                                                                                             Appendix D - Page 5
regulations in proposed subdivision (c). Many of the organizational changes require

renumbering of other subdivisions and numbering changes where the rules are referenced

elsewhere.

       The task force recommends deleting the requirement in subdivision (a)(2) that requires

qualifying language to appear with a local telephone number where the lawyer does not have a

local bona fide office. The task force’s position is that this subdivision already requires the

lawyer to disclose at least one bona fide office location. If the actual physical location of the

lawyer is important to a prospective client, the client will ask the lawyer.

       The task force recommends reorganizing subdivision (b), which sets forth permissible

content of advertisements, into three subdivisions to address permissible content for lawyers

(proposed subdivision (b)(1)), for lawyer referral services (proposed subdivision (b)(2)), and for

public service announcements (proposed subdivision (b)(3)). The task force believes that the

rule will have greater clarity and provide better guidance with this change.

       The task force reviewed the list of permissible content of advertisements to determine if

there were possible changes that would provide better guidance to Florida Bar members and

provide them with greater latitude to use information that is relevant, useful, factually verifiable,

and not misleading. The task force recommends adding to the permissible content of

advertisements military service (proposed subdivision (b)(1)(D)), punctuation marks and

common typographical marks (proposed subdivision (b)(1)(L)), the Statue of Liberty, the

American flag, the American eagle, the State of Florida flag, an unadorned set of law books, the

inside or outside of a courthouse, column(s), and diploma(s) (proposed subdivision (b)(1)(M)).




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                                                                                              Appendix D - Page 6
       To better organize subdivision (b)(2) and delete confusing repetition, the task force

recommends consolidating and deleting redundant information in the prohibition against

misleading information; the proposed subdivision is numbered (c)(1).

       The task force recommends deleting the term “unfair” throughout the rules because it

believes the term is unclear, overbroad, and unenforceable, deleting references to “unfair”

advertising in subdivision (b)(2)(E) and the comment to rule 4-7.2.

       At the request of the board, the task force carefully examined subdivision (b)(1)(B),

prohibiting statements that are “likely to create an unjustified expectation about results the

lawyer can achieve.” Bar staff reported to the task force that interpretation of this rule is one of

the most difficult areas of the attorney advertising rules. The board disagrees with Standing

Committee on Advertising interpretation of this rule provision more often than any other rule

provision. The task force initially discussed defining “likely to create an unjustified expectation”

in either the rule or the comment. The task force found the term to be unclear and incapable of

adequate definition to provide guidance to Bar members. The task force ultimately determined

to recommend that the rule provision be deleted and replaced with a prohibition against

statements that “guarantee results” in proposed subdivision (c)(1)(H).

       To better organize this rule, the task force also recommends consolidating the

prohibitions against misleading illustrations and misleading visual and verbal portrayals in

proposed subdivision (c)(3) [existing subdivisions (b)(3) and (c)(1)].

       The task force recommends deleting the prohibition against advertising for cases in an

area of practice that the lawyer does not currently practice in subdivision (b)(5). A majority of

the task force believes that, although the rationale behind the rule is to address the “brokering” of

cases, the regulation is overbroad and not evident from the language of the rule itself.




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                                                                                                 Appendix D - Page 7
       To simplify the rule, the task force recommends deleting the prohibition in subdivision

(c)(2) against requiring all ads to conform to the requirements of advertising areas of practice,

because it is redundant.

       The Standing Committee on Advertising, through its decisions, has determined that use

of terms such as “expert” or “expertise” implies that a lawyer is board certified in the same way

that the words “specialist” or “specializing” do. To put lawyers on notice of this requirement,

the task force recommends adding to proposed subdivision (c)(5) and the comment that use of

such terms is prohibited unless the lawyer is board certified.

       The task force recommends deleting the requirement in subdivision (c)(8) that the lawyer

disclose in an advertisement that the lawyer intends to refer cases to another lawyer. A majority

of the task force believes that, although the rationale behind the rule is to address the “brokering”

of cases, the regulation is overbroad and not evident from the language of the rule itself.

Lawyers are permitted to pay what is commonly referred to as “referral fees” if there is a written

agreement between the client and each attorney, and each lawyer assumes joint responsibility

and remains available to consult with the client. Rule 4-1.5(g)(2), Rules Regulating The Florida

Bar. The referring lawyer is providing a legal service to the client by assuming joint

responsibility for the matter and being available for consultation with the client. A majority of

task force members feels it is inappropriate to try to regulate otherwise permissible conduct

through an advertising rule. A majority of the task force also found the rule to be unenforceable.

       The task force also recommends deleting the requirement in existing subdivision (c)(11)

[proposed subdivision (c)(10)] that required information to be printed in type size at least one

quarter the size of the largest type used in the advertisement. The task force finds the

requirement to be overbroad and burdensome to Bar staff as well as advertising lawyers. There




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                                                                                              Appendix D - Page 8
are required disclosures that may be slightly smaller than one-quarter the type size of the largest

type, yet still be perfectly readable and therefore adequate. This deletion would leave untouched

the requirement that all required information be clearly legible.

4-7.3

        Rule 4-7.3 addresses print advertisements. The task force recommends deleting the

following required disclosure for print advertisements in subdivision (b) and the rule’s comment:

"The hiring of a lawyer is an important decision that should not be based solely upon

advertisements. Before you decide, ask us to send you free written information about our

qualifications and experience." The hiring disclosure applies only to print advertisements that

include content other than the permissible content of advertisements currently listed in rule 4-

7.2(c)(12). The task force believes that the hiring disclosure requirement was well-intended and

served its purpose in the early years of attorney advertising. The task force questions its efficacy

now, and believes that few, if any, members of the public actually read it.

4-7.4

        Rule 4-7.4 governs unsolicited direct mail communications. The task force recommends

adding the term “unsolicited” to “written communication” in the title to subdivision (b) and

within subdivision (b)(1). The change clarifies that the rule is applicable only to written

communications that are sent to recipients who have not requested information from the lawyer

or law firm.

        The task force considered extending the 30-day ban on unsolicited direct mail from

personal injury to criminal defense and civil traffic matters. In response to the task force’s

interim report, the task force received a large number of comments from Florida Bar members.

More comments were received on the proposed extension of the 30-day rule than any other issue,




                                                 9
                                                                                                 Appendix D - Page 9
and the comments were overwhelmingly negative. Twelve Florida Bar members and two

citizens attended the task force’s January 2005 meeting. All of them spoke on this issue, and

they stated numerous reasons why the proposed change not only did not serve Florida Bar

members, it did not serve members of the public, who were being provided with valuable

information through these communications. After reviewing the written comments and hearing

from those who attended the meeting, the task force voted unanimously against adopting the

change.

       The task force recommends deleting the prohibition against “unfair” statements or claims

found in subdivision (b)(1)(E). The task force recommends deleting the term “unfair”

throughout the rules because it believes the term is unclear, overbroad, and unenforceable.

       The task force also recommends deleting from subdivision (b)(2)(C) a provision

regarding retention of direct written communications. The language is being moved to rule 4-

7.7(h), because it makes more sense to include the provision with other language addressing

records retention, so all information about records retention is located in the same rule provision.

       The task force recommends adding information defining “prior professional relationship”

in the comment to the rule. The issue is an important one, because a lawyer may directly solicit

those with whom a lawyer has a “prior professional relationship.” The term has never been

defined, except through decisions of the Bar’s Standing Committee on Advertising. The

Standing Committee on Advertising initially took the position that the term meant a prior

attorney-client relationship, but later decisions expanded the term to include expert witnesses and

others. The task force discussed replacing the term “prior professional relationship” in the rule

with the term “prior lawyer-client relationship,” but decided that the prior Bar committees must

have meant to be somewhat more expansive than that, because the term “lawyer-client




                                                 10
                                                                                             Appendix D - Page 10
relationship” could have been used originally, had that been intended. The task force determined

that the term “professional” must have been used deliberately and must have been used to

describe the lawyer’s capacity as a professional as opposed to the person to be contacted. The

task force also decided that the term “relationship” must encompass a personal, direct

relationship with another, as opposed to a mere acquaintance. The recommended additions set

forth these concepts and provide examples intended to provide guidance to Florida Bar members

on this issue.

        Rule 4-7.4 requires that a lawyer sending unsolicited direct mail that was “prompted by a

specific occurrence” to inform the recipient where the lawyer obtained the information that

caused the lawyer to send the communication. The task force recommends adding commentary

addressing the standard to be used in determining if the lawyer has provided the appropriate

disclosure. The task force believes the appropriate standard should be that the disclosure allows

the recipient to locate for himself or herself the information that prompted the communication.

4-7.5

        Rule 4-7.5, addressing television and radio advertisements, was amended by the Supreme

Court of Florida during the course of the task force’s tenure. Because the changes are so recent,

the task force believes significant amendments to the rule are inappropriate at this time.

However, the task force did believe that two minor changes should be made.

        First, the rule currently requires that, if a nonlawyer spokesperson is used, that

spokesperson must make an affirmative verbal disclosure that the person is not a lawyer and is a

spokesperson for the lawyer or law firm. The task force determined there are situations in which

it is clear to the advertisement’s recipients that a nonlawyer spokesperson is being used. One

example is the common use of disk jockeys to record radio advertisements. The task force




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                                                                                             Appendix D - Page 11
doubts that anyone would be led to believe that the same person who gives the news and weather

reports, as well as recording advertisements for other local businesses, is a lawyer who is a

member of the firm being advertised. In such situations, the task force believes it is unduly

burdensome to require that the advertising lawyer or law firm use a portion of its limited radio

time to state the obvious: that the announcer is not an attorney. However, the task force believes

it is entirely appropriate to require an affirmative disclosure where it is not clear from the context

of the advertisement that the spokesperson is not an attorney. The task force therefore proposes

amendments to subdivision (b)(2)(B) and the comment that would require an affirmative

disclosure that the spokesperson is not a lawyer only where it is unclear from the advertisement

that that is the case.

        Finally, the task force recommends deleting a paragraph in the comment that defines

“member” of a law firm. The task force believes that the commentary is obsolete in light of

changes made to the rule by the court in Amendment to the Rules Regulating The Florida Bar,

875 So. 2d 448 (Fla. 2004)

4-7.6

        Rule 4-7.6 governs computer-accessed communications such as websites, electronic mail,

and banner advertisements. The task force extensively discussed the issue of websites sponsored

by a lawyer or law firm, including how websites are accessed by members of the public, the

swift technological advances that continue to be made, the type of information typically provided

on websites, and the generally accepted principle of free flow of information through the

Internet. The task force concluded that, typically, viewers would not access a lawyer’s website

by accident, but would be searching for that lawyer, a lawyer with similar characteristics, or

information about a specific legal topic. The task force therefore concluded that websites should




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                                                                                              Appendix D - Page 12
be treated as information on request and therefore, as dictated by new rule 4-7.1(h), not subject

to the attorney advertising rules. The task force also concluded that a person with computer

access and search capability would be at least somewhat Internet savvy and understand that a

lawyer is not necessarily located in a specific geographic location near the user or does not

necessarily have the ability to handle the user’s legal matter just because the user found the

website on the Internet. The task force therefore recommends deleting the requirement in

subdivision (b)(1) that websites disclose all jurisdictions where the lawyer is licensed to practice

and the requirement in subdivision (b)(2) that websites disclose one or more bona fide offices.

        The task force recommends minor changes to subdivision (c), addressing electronic mail.

Although the task force believes that electronic mail already is governed by rule 4-7.2, the task

force recommends adding that express statement to subdivision (c)(1) of rule 4-7.6 to provide

clarity for Bar members. The task force was concerned that subdivision (c)(3) was not restrictive

enough, because an unscrupulous lawyer could have so much information in the subject line that

the “Legal Advertisement” required by the existing rule could be effectively “buried,” whereas

the task force believes that the court intended that the “Legal Advertisement” mark be prominent

in the subject line. The task force therefore recommends amending subdivision (c)(3) to state

that direct mail sent electronically must contain a subject line that begins with the words

“LEGAL ADVERTISEMENT.”

        The task force also recommends adding commentary that examples of computer-accessed

communications include pop-up ads and banner ads to provide further guidance to Bar members.

4-7.7

        Rule 4-7.7 sets forth the requirements for filing advertisements and receiving an opinion

from The Florida Bar. The task force discussed extensively the issue of whether to recommend




                                                 13
                                                                                              Appendix D - Page 13
prior review of advertisements. The task force recognizes Bar leadership’s concern that

noncomplying advertisements that run concurrently with filing often reach thousands of viewers,

and even run their course, before the Bar has the ability to review the advertisements.

Nonetheless, the task force ultimately determined by unanimous vote not to recommend

amending the rules to require prior approval of advertisements before the advertisements may be

disseminated. The task force instead determined that lawyers should be encouraged, but not

required, to obtain prior approval. In order to encourage lawyers to obtain prior approval, the

task force recommends amending subdivision (f) to provide that findings of compliance by The

Florida Bar shall be binding on The Florida Bar in grievance proceedings, except where

misrepresentations are not apparent on the face of the ad. The task force believes that this

change, coupled with the addition of commentary encouraging lawyers to seek prior approval to

obtain a “safe harbor” for their advertisements, will encourage lawyers to obtain Bar approval

before disseminating their advertisements.

       Many recommended changes to the rule regulating the filing requirement are technical in

nature or have been recommended by Bar staff to address issues that come up through the filing

process. For example, the task force recommends changing references to the Standing

Committee on Advertising or the committee to “The Florida Bar” throughout the rule, because

the first level of review is performed by Bar staff. The task force also recommends amending

subdivision (a) to state that filings must be made to The Florida Bar headquarters address, to

address the issue that attorneys sometimes attempt to file with the branch offices, affecting the

Bar’s ability to comply with the 15-day deadline. Another recommendation by Bar staff

endorsed by the task force is the addition to subdivision (b)(3) that a complete filing must

include an accurate English translation if the ad appears in another language.




                                                 14
                                                                                               Appendix D - Page 14
        The rule allows a lawyer to file and obtain an advisory opinion even on advertisements

that are exempt from the filing requirement. The task force recommends in rule 4-7.1 that a

number of communications be exempt, not just from the filing requirement, but from the attorney

advertising rules altogether. Such communications remain subject to the general prohibition

against conduct involving deceit, dishonesty, or misrepresentation under rule 4-8.4(c). Because

the filing requirement requires review for compliance under the attorney advertising rules, such

communications cannot be reviewed under rule 4-7.7. Therefore, the task force recommends

adding to subdivision (a) that a lawyer cannot obtain an advisory opinion regarding

communications that are not subject to the attorney advertising rules as set forth in subchapter

4-7.

        The task force also recommends adding to subdivision (h) a provision regarding retention

of direct written communications. The language is being moved from rule 4-7.4, because it

makes more sense to include the provision with other language addressing records retention, so

all information about records retention is located in the same rule provision.

4-7.8

        Rule 4-7.8 addresses exemptions from the filing requirement. The task force extensively

discussed public service announcements as set forth in subdivision (b). The current rule

seemingly prohibits any information about the lawyer other than the lawyer’s name and

geographic location. The task force concluded that lawyers’ sponsorship of charitable and civic

events is desirable and should be encouraged. The task force therefore recommends amending

subdivision (b) to provide that a public service announcement may contain any of the permissible

content of advertising listed in rule 4-7.2.




                                                15
                                                                                            Appendix D - Page 15
         The task force recommends addressing that the attorney advertising rules do not apply to

certain communications in rule 4-7.1 discussed above. Because the issue is addressed in rule 4-

7.1, the task force determined that it is unnecessary to again state that these communications are

exempt from the filing requirement in rule 4-7.8. The task force therefore recommends deleting

as redundant the following subdivisions providing exemptions from filing: subdivision (d)

concerning communications sent only to existing clients, former clients or other lawyers;

subdivision (e) addressing communications at a prospective client’s request; and subdivision (g)

regarding websites sponsored by a lawyer or law firm.

4-7.9

         Rule 4-7.9 delineates regulations for information provided to a prospective client at that

client’s request. In light of the task force’s recommendation to adopt a rule provision excluding

such information from application of the attorney advertising rules, the task force recommends

deleting this rule in its entirety as redundant in light of proposed 4-7.1(h).

4-7.10

         No substantive changes are recommended in this rule, governing law firm names and

letterhead, but the task force recommends renumbering it in light of the recommendation to

delete rule 4-7.9 in its entirety.

4-7.11

         Rule 4-7.11 governs a lawyer’s participation in a lawyer referral service. The task force

recommends adding subdivision (a)(10), requiring that lawyer referral services affirmatively

state in advertisements that they are lawyer referral services. The change comes at the request of

the Standing Committee on the Unlicensed Practice of Law. Mr. Wayne Thomas, who was then

vice-chair of the committee, attended the June 24, 2004 meeting of the task force and indicated




                                                  16
                                                                                             Appendix D - Page 16
that there are lawyer referral services whose names do not clearly indicate that they are not law

firms and whose advertising does not affirmatively state that they are lawyer referral services.

The opinion of the Standing Committee on the Unlicensed Practice of Law is that the practice is

misleading to the public. Based on these statements, the task force recommends that the rule

change be adopted. Additionally, the task force recommends renumbering the rule to 4-7.10, in

light of the recommended deletion of rule 4-7.9.




                                                17
                                                                                            Appendix D - Page 17
                   APPENDIX A

MINUTES OF ADVERTISING TASK FORCE MEETING MINUTES




                                               Appendix D - Page 18
                                   THE FLORIDA BAR
                              ADVERTISING TASK FORCE 2004
                                       MINUTES

                                           March 9, 2004
                                      8:30 a.m. until 4:00 p.m.
                                      Tampa Airport Marriott
                                          Tampa, Florida

Chair Manuel R. Morales, Jr. presided over the meeting. Seventeen members attended:

Bain                                Ebsary                               Morales
Bales                               Hammond                              Munoz
Bogan                               Huang                                Remsen
Bullard                             Landisburg                           Sellers
Curtis                              Leopold                              Wagner
Ebbets                              Meador

Guests President-elect Kelly Overstreet Johnson, Benjamin H. Hill, III, The Florida Bar’s outside
counsel Barry S. Richard (by telephone), and staff members John Anthony Boggs, Mary Ellen
Bateman, and Elizabeth Clark Tarbert also attended the meeting. The committee took the
following actions:

1.     Heard introductions and opening remarks by chair, Manuel R. Morales, Jr.

2.      Received the charge to the committee by President-elect Kelly Overstreet Johnson. The
Advertising Task Force 2004 is charged with reviewing the attorney advertising rules and
recommending changes to the rules if deemed necessary, including any changes to clarify the
meaning of the rules and provide notice to Florida Bar members of the rules’ requirements.
Included within this charge is an analysis of the advertising filing and review requirement,
including consideration of mandatory review prior to dissemination of advertisements. The task
force should expect to make a final report to The Florida Bar Board of Governors in year 2004-
05.

3.      Heard remarks and advertising regulation history by 1995-97 Joint Presidential Task
Force on Advertising chair, Benjamin H. Hill, III. Mr. Hill stated that this task force is the third
time there has been a major review of the attorney advertising rules in Florida Bar history. The
first commission was appointed in the late 1980's in response to the proliferation of attorney
advertising in the wake of the Bates decision. He urged task force members to read the Bates
decision, authored by Justice Blackmun. Justice Blackmun stated the opinion of the majority,
that the court was not persuaded that attorney advertising will be inevitably misleading. The
justice also stated that it is doubtful that any attorney could advertise flat fees, and that the only
services that lend themselves to advertising are simple, routine legal services. The court’s belief
was that advertising would be limited, and that areas of practice such as personal injury and
criminal do not lend themselves to advertising. Justices Powell and Burger wrote dissenting
opinions. They feared that advertising would be injurious to the people who rely on advertising



                                                 A-1
                                                                                               Appendix D - Page 19
to make such decisions. The justices’ insight projections included that the entire profession
would be changed by advertising. 10-15 years after Bates, Justice Powell wrote an article stating
that the decision in the Bates case was one of the worst for the profession. Mr. Hill stated his
opinion that the profession has changed in the last 20-30 years; more lawyers believe that legal
practice is a business, not a profession.

       In the 1980's, the first advertising was benign, was for routine legal services, and took the
       form of what is known as “tombstone” advertising. Advertising agencies and marketers
       got involved when they realized they could sell attorney services and saw an enormous
       opportunity. Advertising became more misleading and deceptive, causing the formation
       of the first Florida Bar commission in the 1980's, once the bar came to the realization that
       attorney advertising needed to be regulated.

       Task force member Kelly Huang entered the meeting.

       The first commission engaged in a two year study of attorney advertising. The bar hired
       Magid and Associates, who found that people did not trust attorneys who advertised and
       that people’s opinion of the judicial system changed because of attorney advertising.
       There was also at that time a lot of media attention focused on attorney advertising in the
       wake of a tragic accident involving schoolchildren in Levy County. It was widely
       reported in the media that attorneys were taking advantage of this tragedy to line their
       own pockets.

       The commission faced the task of regulating advertising within constitutional limits, in
       light of the commercial speech doctrine, which was refined in several cases before and
       after Bates. A number of commission members were in favor of following Iowa’s
       approach in allowing only tombstone advertising, but determined ultimately against that
       approach. The commission’s focus was to protect the public and to give attorneys as
       much guidance as possible, balancing the various competing factors.

       Florida was the first state to draft such rules, including a review requirement. Many
       states obtained copies of Florida’s rules and adopted similar rules.

       One of the rules adopted was a ban on direct mail solicitations within the first 30 days
       following a personal injury, which was upheld by the U.S. Supreme Court in The Florida
       Bar v. Went For It, Inc. Five justices found that the bar had sufficient evidence to show a
       substantial government interest in regulating and that the regulation was reasonable, not
       being an outright ban. The bar submitted anecdotal evidence such as citizen complaints,
       articles, editorials, the Magid & Associates survey, and the Young Lawyers Division
       survey of yellow pages advertisements. The Went For It case was the first decision to
       uphold advertising regulation.

       The second advertising task force was appointed in 1995 to improve the attorney
       advertising rules. Most of the rules recommended by that task force are still in place
       today. New rules were adopted that addressed television and Internet advertisements.




                                                A-2
                                                                                            Appendix D - Page 20
       Those in favor of unrestricted attorney advertising claim that advertising makes legal
       services more available and promotes competition when attorneys advertise fee
       schedules. There has been very little evidence that such competition has occurred.

       The advertising rules should be examined periodically. As staff, the board, and grievance
       committees have more experience in dealing with the rules, they can point out problems
       that should be addressed. Mr. Hill urged the task force members not to abandon the
       rules, but the keep some form of restraint on advertising. The potential to mislead the
       public exists; if advertising is allowed, it must be honest and cannot mislead the public.

       Task force member Wagner asked Mr. Hill’s opinion on what he perceives as the biggest
       problem in attorney advertising. Mr. Hill responded that the biggest problem that has not
       been previously addressed is the frequency and pervasiveness of attorney advertising.

       In response to a question from task force member Remsen, Mr. Hill responded that if the
       task force is able to make distinctions between sophisticated and more naive consumers
       in the advertising rules, great.

       In response to a question from Division Director Mary Ellen Bateman, Mr. Hill
       responded that public hearings were held by the earlier commissions and were helpful.
       Few members of the public attended, but markets, newspaper editors and advertising
       attorneys attended at the encouragement of the commission.

       In response to a question from task force member Wagner, Mr. Hill responded that courts
       are receptive to advertising regulation if a proper record is developed and the regulation
       is reasonable.

       In response to a question from task force chair Morales, Mr. Hill answered that there is
       some argument that advertising provides some useful information to the public. The
       earlier commissions felt that advertising of price information would be helpful and would
       promote competition, but that has not been borne out in practice.

4.      Heard an overview of constitutional issues relating to advertising regulation by the bar’s
outside counsel Barry S. Richard in executive session. Committee chair Manuel R. Morales, Jr.
cautioned task force members not to disclose Mr. Richard’s advice except for discussions with
other task force members, Board of Governors members, or bar staff, to preserve attorney-client
privilege.

5.    Heard an overview of advertising rules and evaluation of advertisements by Ethics
Counsel Elizabeth Clark Tarbert.

6.      Heard a report from Legal Division Director John Anthony Boggs regarding the
Statewide Advertising Grievance Committee. The committee was appointed two years ago
based on the board’s realization that there was widely disparate treatment of advertising cases
across the state. The purpose of the grievance committee was to promote more uniformity in the
treatment of such cases.



                                                A-3
                                                                                            Appendix D - Page 21
7.      Discussed task force members’ general views on advertising, advertising regulation, and
the task force’s charge.

       Task force member Wagner commented that he was opposed to analyzing the rules
       without first addressing the major issues confronting the bar regarding advertising.
       Tinkering with existing rules is a bureaucratic trap, and involves short-term solutions to
       perceived problems, sometimes creating new problems. The task force must address two
       issues. The first is the benefit to the public, because the only reason advertising can be
       justified is that it provides a benefit to the public. The second is the perception of the
       actual worth of the legal profession itself, the extent to which advertising affects that
       perception, and if the bar can correct that effect. The first advertising commission had a
       marketer speak about the concepts involved in marketing and obtaining market share. To
       obtain market share, an advertiser must demonstrate that the quality of the product the
       advertiser is offering is better than others. If comparison on quality is prohibited,
       advertisers can compete only in two things: the first is competing on the cost of services
       and the second is competing with frequency of advertising. The bar must face the
       problems created by these market forces, and prior approval of advertisements will not
       accomplish improvement in services to the public. The task force should consider prior
       approval of mass market advertising only, i.e., radio and television. The task force
       should consider having very broad rules of don’t lie, cheat or steal, then give staff broad
       prosecutorial discretion. The task force should also do a survey to find out the public’s
       perception of lawyer, courts and the justice system.

       Task force member Landisburg commented that the task force should discuss the issue of
       improving public perception. The task force should also break into subcommittees to
       analyze the rules and propose changes. Task force member Wagner responded that the
       only purpose of regulating advertising that is justified is to benefit the public or benefit
       the court system. We are on the verge of another major change in advertising, which is
       the Walmartization of attorneys created by advertising attorneys. The task force must
       find out what the public thinks, otherwise the task force will lack the capability of making
       intelligent decisions.

       In response to a question from task force member Leopold, President-elect Johnson
       responded that she had no preconceived ideas of what decisions the task force would
       make about specific rules. At the end of the day, she wants the rules to be clear and to be
       applied consistently to all attorneys. Her service on the board and in hearing advertising
       appeals come before the board leads her to the conclusion that the rules are unworkable
       in their current state. Some regulation of advertising clearly is required, but also clearly
       the current regulations can be improved. Additionally, because the board has seen so
       many advertisements that do not comply go through the advertising review process while
       the advertisement is being disseminated and seen so many advertisers seemingly abuse
       the process, that she would like the advertising task force to consider the issue of prior
       review of advertisements.




                                               A-4
                                                                                            Appendix D - Page 22
Task force member Sellers commented that he agreed with task force member Wagner’s
comment that the rules should be written in broad principles, that all of the rules should
be written from the perspective of misleading the public. Advertising is here to stay and
attorneys are in the business of law to make money. The rules should be clear and
consistent. The task force should also address ideas for enforcement.

The task force discussed whether or not survey information would be helpful to
accomplish their mission. Task force member Munoz commented that there were many
task force members who were very experienced in dealing with the rules. Without
having done a complete review of the rules, he cannot tell what survey information might
be helpful, but the task force can analyze many of the rules without the help of survey
information.

Task force vice-chair Ebbets commented that the board of governors spent over two
hours at the last board meeting on advertising issues at a meeting with many important
issues for the board to address. That, and his prior board experience, lead him to the
conclusion that the advertising rules must be simple, clear, and fair to all lawyers.

Task force member Bales commented that the task force needs to be fair. The task force
cannot just talk about lawyers who have large television advertising campaigns, but must
also recognize the fact that large, respected, silk-stocking law firms also have large
advertising campaigns and violate the advertising rules as much as lawyers with large
television advertising campaigns. The goal of the task force cannot be to prevent
television advertisers from becoming larger. The task force members need to recognize
that each of its members advertise in some way.

Task force member Meador commented that the task force must answer the question of
the purpose of the rules regulating attorney advertising. The task force members must
apply the same standard in looking at all of the attorney advertising rules.

Task force member Huang commented that all task force members can agree on the issue
that the perception of the profession among members of the public is on the downturn.
The task force does not need surveys to accomplish its work or to obtain information on
what is offensive to the public. Protection of the public must be the task force’s
paramount goal, with improving the profession as a secondary goal.

Task force member Bain commented that it is important for task force members to have
an understanding of their purpose, and that all can agree that a good rule has clarity and is
easy to enforce. Task force members must ensure that their motivation is pure - it cannot
be to control big marketers. Their objective goal should be that advertisements cannot be
deceptive and cannot be for the personal benefit of task force members, such as being
anti-competitive.

Task force member Hammond commented that he is in the unusual situation of being an
attorney who has not practiced in years because he is the marketer for an organization
that supports real estate attorneys. He feels it is important for the task force to guard



                                         A-5
                                                                                     Appendix D - Page 23
against taking too monolithic an approach and to move away from the notion that all
advertising is bad or hurts consumers. We have lived in a consumer society a long time.
Advertising in itself is not bad, although some individual advertisements are bad.
Advertising can fulfill a meaningful, worthwhile and educational purpose. The Fund
spends several million dollars a year on advertising and researched the issue of attorney
advertising before making that investment. Consumers responded to The Fund that they
do not put all attorneys in the same boat and do not find that all attorneys who advertise
are bad. He asked if there is an inherent presumption behind the rules that advertising is
bad. If ads are effective, the advertisement does not comply with the rules and if the ads
do comply, they are not effective.

Task force member Wagner responded that when advertisements show the consumers
they have a need for services, there is no problem. Most personal injury lawyers
advertise to show that consumers need them personally, not that they need legal services
in general. Personal injury attorney advertising is having a negative effect on the public’s
respect for courts. He is interested in determining why consumers hire one attorney as
opposed to another. He believes the task force should learn more facts before starting to
change the rules. Advertising can be done in such a way as to help the public.

Task force member Remsen commented that there is a difference between sophisticated
consumers and uninformed consumers, and the rules should treat those two types of
consumers differently. For example, many business people frequently use legal services
and are therefore sophisticated consumers of legal services, so the rules should treat them
differently.

Task force member Bogan commented that he believes advertising regulation involves
free market issues. He is unsure of what type of consumer should be termed
“sophisticated.” As an example, his mother is a retired school teacher who is well-
educated and should be considered sophisticated. However, she selected a personal injury
attorney on the basis of the size of yellow pages advertisement. He feels uncomfortable
deciding what is deceptive, because it is subjective. Bar staff deals with these issues on a
daily basis and should be relied on. His goal is to make the process easier.

Task force member Meador commented that the bar cannot protect consumers from
themselves. The task force needs to determine the purpose of the rules.

Task force member Remsen commented that the more information provided to
consumers, the better informed the consumer is and the better able to make decisions.
80% of consumers do not know a lawyer. Advertising is here to stay and consumers need
to know how to hire a lawyer.

Task force member Bullard commented that his understanding is that advertising began
so that younger lawyers, particularly minorities and women, could become known as
providing legal services to the public.




                                        A-6
                                                                                    Appendix D - Page 24
       Task force member Landisburg commented that the task force does not need to reinvent
       the wheel. The task force’s mission is to clarify the rules. The task force cannot just
       discuss philosophy, but must set up a structure so that it can accomplish its mission.

       Task force member Leopold commented that the task force cannot review the rules until
       the task force members understand the structure of what it is looking at. The task force
       needs to understand how the rules will be applied in the future. Marketing comes down
       to personal relationships and not any one thing leads to marketing. He is concerned that,
       although the bar needs rules, he does not want the door closed on marketing.

8.      Discussed organization of the task force’s charge. Chair Morales proposed dividing the
task force members into subcommittees to review each rule then makes recommendations to the
full committee. The task force requested that the chair divide the rules and appoint task force
members to the subcommittees as he felt appropriate. Chair Morales asked members with a
preference to contact him to express that preference as soon as possible.

9.     Discussed publicizing the task force’s work through The Florida Bar News. The task
force unanimously determined that the task force’s work should be publicized through the News
and on the bar’s website.

10.      Discussed the possibility of inviting comments on the advertising rules from Florida Bar
members, including whether to have live commentary/testimony or written comments only.
Task force member Wagner suggested that such a request be targeted to groups who might be
interested such as the section chairs, ATLA, Florida Defense Lawyers. The task force directed
staff to send a communication to all committee and section chairs, voluntary bars, and other
interested groups inviting their comments.

11.    Discussed the future meeting schedule. Directed staff to arrange a meeting in May. Task
force member Hammond volunteered meeting space in Orlando. Task force member Curtis
volunteered meeting space at Nova University in Ft. Lauderdale. Determined that
subcommittees would meet via conference call in the interim.

12.    Directed staff to obtain prior studies and surveys done on attorney advertising.

13.    The meeting was adjourned.




                                               A-7
                                                                                           Appendix D - Page 25
                                 THE FLORIDA BAR
                            ADVERTISING TASK FORCE 2004
                                     MINUTES

                                        May 11, 2004
                                   9:30 a.m. until 4:30 p.m.
                                 The Florida Bar Headquarters
                                     Tallahassee, Florida

Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen members attended:

Bain                              Hammond                            Remsen
Bales                             Lewis                              Sellers
Bullard                           Meador                             Wagner
Curtis                            Morales                            Willard
Ebbets                            Munoz

Board of Governors member Michael J. Glazer, and staff members John Anthony Boggs, Mary
Ellen Bateman, Elizabeth Clark Tarbert, Kathy J. Bible, Barbara B. Moore and Arne C.
Vanstrum also attended the meeting. The committee took the following actions:

1.     Heard introductions and opening remarks by chair, Manuel R. Morales, Jr.

2.     Approved the minutes of the March 9, 2004 meeting.

3.     Heard a report from staff on the letter from Chair Manuel R. Morales, Jr. inviting
comments on the charge of the Advertising Task Force 2004 that was sent to The Florida Bar’s
standing committees and sections and the voluntary bar associations.

4.    Determined, at the suggestion of committee member Wagner, to send requests for
comments to other interested groups besides lawyers, such as AARP. Committee member John
Remsen volunteered to provide suggestions on appropriate groups.

5.     Directed staff to request meeting space at the bar’s General Meeting in September for
four hours to accommodate additional comments, if needed.

6.     Heard a report from staff on publicizing the work of the Advertising Task Force 2004
through The Florida Bar’s website and The Florida Bar News.

7.     Heard remarks by Mr. Michael J. Glazer, Florida Bar Board of Governors member and
Designated Reviewer for the Statewide Advertising Grievance Committee. Mr. Glazer
commented that he is the Designated Reviewer for the statewide Advertising Grievance
Committee. As Designated Reviewer, he reviews actions of that grievance committee, must
approve any resolution by settlement, and can reverse any actions they take. Mr. Glazer reported
some statistics from the grievance committee and noted that most rule violations they see are
minor. The questions that are important to Mr. Glazer in determining whether and what
settlement would be appropriate are the attorney’s prior history. He strongly supports use of the


                                               A-8
                                                                                          Appendix D - Page 26
advertising workshop as a resolution for minor violations. He also strongly supports the
requirement for attorneys to obtain prior Florida Bar approval of their advertisements, usually for
between 1 and 2 years. Prior review would resolve many problems with attorney advertising.
He urged the task force members to consider how the bar would enforce any rules that are
recommended, to consider there are tools available for resolution of grievance cases, and to
ensure that the process provides sufficient time for review, particularly in light of deadlines for
advertisements such as yellow pages. In response to a question from task force member Wagner,
Mr. Glazer replied that the violations he has seen are a mix of violations that are clearly
expressed in the rules and that are subject to interpretation of other rules.

Task force member Rush entered the meeting.

8.     Heard a report from Subcommittee A, Rules 4-7.1 (General) and 4-7.2 (Communications
Concerning a Lawyer's Services) by subcommittee chair Basil Bain. Mr. Bain reported that the
subcommittee’s approach was to examine each provision of each rule, determine its purpose,
determine whether the purpose was legitimate, and determine whether the language of the rule
accomplishes the purpose. If the purpose is inappropriate or the language over broad, the
subcommittee drafted changes.

In 4-7.1, the subcommittee discussed the possibility of drafting a definition of advertising to
define what communications are covered by the rules. A definition might allow simplification of
the rules by referring only to “advertising” as opposed to “advertisements and written
communications” and the like as currently found in the rules. Staff drafted three alternatives,
including various forms of communication in the definitions. The committee determined that it
needs to reach consensus on what will be covered by the rules before deciding on a definition of
the term “advertising.” Task force member Bales commented that he does not necessarily agree
that advertising should be defined; the task force should concentrate on determining what rules
should be applicable, then readdress the issue. Task force member Lewis commented that, if
everything is determined to be an advertisement, the bar will be swamped with filings and unable
to timely review everything. Task force member Remsen commented that the task force should
consider the concept of whether or not the advertisement was paid for by the attorney. Task
force member Bain commented that it is useful to have a definition of advertising in the rules;
there is currently confusion over what is covered by specific rules because of the different terms
used to describe different forms of advertising.

In 4-7.1, the subcommittee also discussed and recommends addressing application of the
attorney advertising rules to out of state lawyers who advertise in Florida. Staff commented that
a similar proposal was made to the court in 1997, but was rejected by the court in its 1999 order
on the basis that the conduct should be considered the unlicensed practice of law. Staff further
commented that this position seems to create a loophole for out of state attorneys who are
authorized to perform some legal services in Florida to avoid compliance with our rules, because
they are not engaged in UPL. Staff added that the issue was not extensively briefed to the court,
because there was not a lot of opposition to the rule proposal. Task force member Sellers
commented that there is no point having a rule that has no enforcement capability. Staff
responded that the Supreme Court of Florida has authority to regulate all practice of law in
Florida and could enforce such a rule if it chose to. Task force member Munoz suggested that
the phrase “involving matters of Florida law” be deleted from the proposed rule, because


                                               A-9
                                                                                           Appendix D - Page 27
otherwise advertisements might be exempted from the rules that should be covered. The
consensus of the task force was to delete that phrase and further discuss the issue of application
of the rules to out of state lawyers.

The subcommittee reported that it had discussed and recommends moving the provision that the
advertising rules do not apply to communications between attorneys from the comment to the
rule, to provide clear guidance to Florida Bar members. Task force members Wagner and Curtis
opposed exempting communications between lawyers from the attorney advertising rules,
particularly where the communications would be aimed at lawyers as prospective clients, as
opposed to referral sources. Task force member Rush spoke in favor of the proposal,
commenting that lawyers are sophisticated and the rules were not designed to protect lawyers.

The subcommittee reported that it recommends a structural change to Rule 4-7.2, to organize the
rule in three categories: required information, permissible information, and prohibited
information or general advertising requirements.

The subcommittee reported that it discussed and recommends expanding the category of
permissible content of advertisements to include military service, punctuation marks, common
typographical marks and symbols, the American flag, the State of Florida flag, law books,
diplomas, commonly used religious symbols, the Statue of Liberty, the American eagle, and a
photograph of the attorney in front of a plain background or unadorned set of law books
(previously limited to a headshot of the attorney in front of a plain background or unadorned set
of law books). Additionally, the subcommittee recommends adding in this section of the rule
that in addition to being presumptively permissible, advertisements are exempt from filing if
limited to permissible content. Task force member Munoz commented that the issue of filing
exemptions should be moved from this rule to the specific rule on filing exemptions. Task force
member Wagner suggested that the term “false” should be deleted from the presumption,
because if an item of permissible content is outright false, such as including the wrong date of
bar admission, the bar member should not be able to avail him or herself of the presumption.
The task force consensus was to remove “false” from the presumption. Task force member
Wagner expressed concern of permissible content including former positions in the legal field.
He has seen attorneys advertise “former prosecutor” or “former judge” and believes the sole
purpose of such communications is to imply an improper ability to influence the judicial system.
Subcommittee chair Bain responded that such communication provides useful information about
the lawyer’s experience and is factually verifiable. Subcommittee member Bales added that
terms such as “former prosecutor” are no more misleading than stating that a lawyer has
practiced personal injury for 20 years, because they merely state the lawyer’s legal experience.
The task force determined to resume discussion of this item.

The subcommittee reported that it recommends deletion of the term “unfair” from prohibited
content of advertisements wherever it appears throughout the rules, because the term is unclear.
Everything that should be prohibited is already covered by the terms “false, misleading or
deceptive,” and the term “unfair” could be used to indicate that one attorney has an unfair
advantage over others because of budget or other competitive issues that the rules should not be
used to addressed. The consensus of the committee was to delete the term “unfair” everywhere it
appears, in Rule 4-7.2(b)(1), 4-7.2(b)(2)(E), 4-7.2 Comment (paragraph 1), and 4-7.4(b)(1)(E).
The consensus of the committee was to delete the term “unfair” from the rules.


                                               A-10
                                                                                            Appendix D - Page 28
Regarding subdivision 4-7.2(a)(2), the subcommittee reported that it discussed and recommends
deleting the language “If an advertisement or written communication lists a telephone number in
connection with a specified geographic area other than an area containing a bona fide office,
appropriate qualifying language must appear in the advertisement.” Staff commented that this
rule provision was added in 1999 because the Standing Committee on Advertising interpreted the
attorney advertising rules as prohibiting advertising local numbers where the attorney did not
have an office location without qualifying language such as “in [city], call ____” to indicate that
the attorney did not have an office location there. The committee interpreted advertising such
“drop lines” without indicating the lack of a bona fide office in the location as misleading. Task
Force member Ebbets commented that such communications are misleading, and could still be
prohibited under other provisions of the rule. Subcommittee member Bales responded that the
subcommittee does not believe the information to be misleading. Task force member Rush
commented that one purpose of the rules is to protect the image of the legal profession. Such
communications negatively impact public perception and lead the public to believe that lawyers
are misleading the public; the rule puts no real burden on attorneys and should be retained. Staff
commented that the task force must decide whether or not the conduct is considered misleading,
because if the language is removed from the rule, attorneys will interpret that action to indicate
that the conduct is permissible. Subcommittee member Bales suggested that the task force
consider deleting the geographic disclosure requirement. The consensus of the committee was
not to delete the geographic disclosure requirement, but discuss the issue of deleting the specific
language further.

Subcommittee chair Bain reported that the subcommittee discussed and recommends deleting
Rule 4-7.2(b)(5) prohibiting advertising areas of practice the attorney does not currently practice.
The rationale behind the rule was aimed at brokering cases, but the regulation is over broad and
not evident from the language of the rule itself.

Subcommittee chair Bain reported that the subcommittee recommends deleting Rule 4-7.2(c)(8)
requiring that attorneys disclose in advertisements whether they intend to refer the matter to
another attorney. The subcommittee members believe that the referring attorney is obligated to
be jointly responsible for a case if dividing the fee with another lawyer, and is therefore
providing an actual legal service to the client. The rule therefore is over broad and does not
serve the public interest. Task force member Munoz spoke against the recommendation, stating
that it is inherently misleading not to disclose the intent to refer a matter to another attorney if
that is the lawyer’s intent at the time the advertisement is run. Subcommittee member Bales
responded that law firms frequently give cases to associates to handle, although the associates
are not the lawyers mentioned in the firm’s advertisement. Subcommittee member Morales
commented that lawyers may not know whether or not they will refer particular cases until they
interview the prospective clients. Task force member Rush commented that the rule was aimed
at the conduct of an attorney advertising for cases that they know they will refer out, for
example, referring out all personal injury cases.

Task force member Wagner suggested, referring back to 4-7.2(b)(5), that the rule instead be
changed to a prohibition against advertising for areas in which the lawyer is not currently
competent to practice. Task force member Rush responded that the rule is designed not at
lawyers who are not competent in a particular area, but at lawyers who choose not to practice in



                                                A-11
                                                                                             Appendix D - Page 29
a particular area, but advertise the area; clients get talked into hiring the lawyer, then get referred
to someone else.

Subcommittee member Morales commented that the task force should consider, as an example,
attorneys who handle personal injury cases except for litigation. The attorney will be able to
handle most personal injury cases to completion, but will have to involve a litigator for those
cases that do not settle. Attorneys should be encouraged to involve someone competent if the
attorney is not. Subcommittee member Lewis added that if a division of fees is involved, the
attorney is still liable and is still practicing personal injury law. Task force member Rush
responded that the rule is not aimed at lawyers who only refer out some cases; the distinction is
that the lawyer knows that the lawyer will not handle all personal injury cases, for example.
Subcommittee member Morales asked how the rules can enforce the attorney’s intent. Task
force member Meador commented that the purpose of the rule is protect the public, so that the
prospective clients know what they are getting into and whether or not the advertising lawyer
will actually handle their case. Task force member Wagner commented that, by not disclosing
the intent to refer, attorneys take away a prospective client’s bargaining power. The case has less
value if the lawyer the case is referred to knows that the lawyer will have to pay a referral fee,
which limits the client’s choice of lawyers who will take their case.

9.     Heard a report from Subcommittee B, Rules 4-7.3 (Print Media), 4-7.4 (Solicitation and
Direct Mail), and 4-7.10 (Firm Names & Letterhead), by subcommittee chair Chobee Ebbets.

Subcommittee chair Ebbets reported that the subcommittee completed a preliminary review of
the rules assigned and began drafting rule changes. The first recommendation of the
subcommittee is to eliminate the requirement of the hiring disclosure in print advertisements.
Although the requirement was originally intended as a warning to consumers to obtain more
information about attorneys before hiring, the disclosure does not appear to be making a
difference and does not cause anyone to request more information who would not already be
requesting additional information. Task force member Munoz commented that task force
member Bogan noted at the first meeting that a family member had selected an attorney from a
yellow pages advertisement; perhaps there is a large segment of the public that hires an attorney
without doing any investigation. However, task force member Munoz does not feel strongly
about eliminating the hiring disclosure, because he is unsure whether any member of the public
reads it. Task force member Bain commented that, although he does not feel strongly about
eliminating the hiring disclosure, the disclosure provides a positive message to the public that
they should ask for additional information from attorneys before making a decision to hire an
attorney. Subcommittee chair Ebbets responded that the original advertising commission tried to
include every possible protection; this particular protection is not effective in actual practice.
Task force member Curtis raised a concern regarding the elderly, many of whom for cultural
reasons do not understand that they have a right to question someone’s qualifications.

Subcommittee chair Ebbets suggested that the task force consider asking a group such as the
Citizen’s Forum whether the disclosure is useful. Task force members Lewis and Bales
commented that consumer groups will always agree that a disclaimer is useful, but that does not
mean that members of the public will actually read a disclaimer or find it useful. Task force
member Hammond commented that there are members of the public who will never ask for
information about qualifications and the disclosure statement will not make someone who does


                                                 A-12
                                                                                               Appendix D - Page 30
not already have the propensity to ask questions to start asking for additional information. Task
force member Bain asked whether the public now expects to see the hiring disclosure and if its
absence will have a negative effect. Assistant Ethics Counsel Barbara B. Moore noted that one
of the goals of the subcommittee was to make the rules as uniform as possible; most forms of
advertisements are not required to contain the hiring disclosure, such as television, radio, and
direct mail.

Subcommittee chair Ebbets reported that the subcommittee recommends changing “prior
professional relationship” to “prior attorney-client relationship” in Rule 4-7.4(a). Task force
member Munoz spoke against this proposal, stating that there are a number of relationships that
should fall within the umbrella of persons who may be directly solicited, such as persons an
attorney has worked with at a corporate client, although the person is not a client, or persons the
attorney has worked with on charitable boards and the like. Making this change could have a
backlash. Task force member Lewis agreed, stating the change is too restrictive.

Task force member Wagner suggested that the Rule 4-7.4(b) be amended to clarify that the rule
was intended to apply only to communications not requested by the prospective client, perhaps in
the title. The task force directed staff to draft such language.

Subcommittee chair Ebbets reported that the subcommittee recommended adding criminal cases
to the 30 day rule in 4-7.4(b)(1)(A). The subcommittee discussed the issue of urgency in the
timetable of criminal law, but decided in balance that the same rationale applies to criminal law
as personal injury. Subcommittee member Sellers commented that he was unable to attend the
subcommittee meeting, but strongly objects to adding criminal law to the 30 day prohibition on
direct mail. The rule will not serve criminal defendants, most of whom do not know who to
contact for assistance with criminal law matters. The time limits in criminal law justifies the
distinction between criminal law and personal injury. If a person is arrested and bonds out, they
are usually given a court date 2-3 weeks away. Many people will end up going to court without
representation and may unknowingly waive important rights, because neither the court nor
prosecutors explain their rights to them. One of the most critical periods of time in criminal
matters is before the initial court date. Task force member Rush commented that in his circuit,
the public defender is appointed at first appearance, so the person is represented. If the task
force reviews the comment to the rule, the rationale is to curb abuses and coercion of persons in
a particularly sensitive state. That same rationale applies equally to criminal matters; criminal
defendants are in as high a state of distress as a person can be in. The same argument about the
critical time period can be made in personal injury; within that time period, the injured person
can be persuaded to settle by an adjuster. Task force chair Morales commented that requiring a
30 day waiting period in criminal cases may actually prevent criminal lawyers from obtaining
clients at all because the initial time period in criminal cases is so critical, whereas in personal
injury cases, 30 days is fairly insignificant compared to the lifetime of a case. Task force
member Wagner commented that the decision cannot be made on the basis that it hurts people
who need a lawyer; it appears to really be a matter of taste.

Task force member Wagner commented that he does not understand Rule 4-7.4(b)(2)(F) that
does not allow an attorney to send a contract unless it is marked “SAMPLE” and “DO NOT
SIGN.” Task force member Bain commented that the prohibition is useful, because it prevents a



                                                A-13
                                                                                             Appendix D - Page 31
member of the public from entering into a contract with an attorney on the basis of a first,
unsolicited contact from an attorney.

Task force member Wagner commented that Rule 4-7.4(b)(2)(I), requiring an attorney who signs
the letter to disclose that another attorney will actually handle the matter, is particularly valuable
to the client.

Subcommittee chair Ebbets reported that the subcommittee recommended no changes to Rule 4-
7.10.

10.    Heard a report from Subcommittee C, Rules 4-7.5 (T.V. and Radio) , 4-7.6 (Computer-
accessed) & 4-7.11 (Lawyer Referral Services), by subcommittee chair Shane Munoz.

Subcommittee chair Munoz reported that the subcommittee worked on the general premise of
protection of consumer, preserving the profession, balanced with the interests of attorneys in
competing in the marketplace. The subcommittee’s consensus was to simplify rules and try to
make the rules as uniformly applied to all media rather than having special rules for each media
to the extent possible.

The subcommittee consensus as to Rule 4-7.5 was that the subcommittee agreed with the
proposed changes currently pending before the Supreme Court of Florida.

Subcommittee chair Munoz reported that the subcommittee discussed whether the proposed
prohibition against all background sound other than instrumental music might be overly broad
issue, but determined that the rule had the benefit of being clear and easy to interpret. The
subcommittee also determined that nonlawyers should be permitted to be spokespersons for a
law firm, although the use of celebrities should be prohibited. Task Force member Wagner
asked what is the theory of prohibiting celebrity spokespeople, and what is the subcommittee’s
goal in proposing that prohibition? Subcommittee chair Munoz responded that the
subcommittee’s concern was the unfair advantage if a recognizable celebrity lends their own
credibility to the attorney. Task force member Rush spoke against allowing the use of nonlawyer
spokespersons at all. Subcommittee chair Munoz responded that the subcommittee felt that
spokespersons should be allowed, for example, to use a fluent foreign language speaker in an
advertisement. Task Force member Lewis commented that the task force would not be helping
the public by allowing nonattorney spokespersons that could give the implication that attorneys
also speak foreign languages.

At task force member Wagner’s suggestion, the task force discussed whether to request that the
Supreme Court not to rule on pending rules changes affecting the advertising rules until the task
force makes recommendations. Task Force member Bales commented that the task force should
not ask the Supreme Court to wait on changing the rules. He believes that the legislature’s aim
in addressing attorney advertising in legislation is to go after The Florida Bar, not to change the
rules per se. Politicians will take as a message that The Florida Bar is caving. The task force
should do what the members think is correct, not what would make the legislature happy.

Task Force member Bain commented that he agrees there should be limitations on the use of a
spokesperson because there is a tendency of the public to make decisions on the basis of a



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                                                                                               Appendix D - Page 32
celebrity lending credibility. Use of such a spokesperson has the potential to manipulate or
mislead the public.

Subcommittee chair Munoz commented the subcommittee agreed to incorporate 4-7.2 by
reference in Rule 4-7.5.

Subcommittee chair Munoz stated that there was no one on the subcommittee with special
knowledge of technology, regarding Rule 4-7.6. The subcommittee discussed concerns that
technology changes so quickly and is difficult to anticipate. The subcommittee reached a
consensus that most issues raised by computer communications may be handled with reference
to other rules: e-mail sent on an unsolicited basis should be treated as direct mail. Pop-up and
banner, on the other hand, should be guided by reference to print ads. The subcommittee
discussed concerns regarding, for example, pop ups that are driven by knowledge regarding the
consumer and whether such issues should be treated with special rules. On the other hand, is
there any difference than placing a print ad in a specialty magazine? The subcommittee
discussed opt-out provisions for members of the public that do not want to receive Internet
“spam,” but the subcommittee did not research the cost of such provisions. The subcommittee
discussed how direct mail rules translate to the Internet; for example, use of an “Urgent” type
indication on e-mail should be prohibited in the same way that direct mail cannot be sent by
federal express or certified mail. There should also be rule provisions that indicate direct e-mail
cannot be made to resemble pleading, particularly now that courts are accepting electronic
filings. Chat rooms would be considered direct, in-person solicitation, and the same analysis
applies to any real time conversations on-line.

Task Force member Wagner commented that he does not think there should be an exemption for
what is currently termed “information on request” for websites or homepages sponsored by a law
firm - such distinctions are with today’s technology. The task force should not treat computer-
accessed information in a different way than general advertising regulation.

Task Force member Bain commented that it makes sense to try to apply the same principals to
Internet as other areas of the rules.

Task Force member Lewis commented that staff indicated under the current advertising rules
that websites are no different than if someone calls a lawyer and asks for information, such as a
brochure, to be sent. Task Force member Wagner responded that they are both advertisements.
Subcommittee chair Munoz commented that no one is saying that they are not both subject to
some regulation, it is a question of what regulation should be applied; the subcommittee
consensus was that information on request was the closest analogy.

Task Force chair Morales asked if there is anything that can be done on computer that cannot be
analogized to another form of advertising. Subcommittee chair Munoz responded that only the
distinction is that, in searching the Internet for information on general legal issues, a lawyer’s
website may come up as a response to a search, even though the person is not necessarily looking
for an attorney. Task Force member Wagner commented that if a person searches using any
pharmaceutical company name, the person will get 3 or 4 lawyer websites as a response to the
search. Task Force member Bullard commented that computer users are more sophisticated than
other members of the public.


                                               A-15
                                                                                            Appendix D - Page 33
Task Force chair Morales commented the task force needs to decide what kind of computer
activities need to be regulated. Subcommittee chair Munoz commented that one other issue
discussed by the subcommittee was the use of what is referred to as “spy ware” that can be used
to spy on consumers and report back there on-line activities and transactions.

Task Force member Wagner raised the issue of lawyers paying extra to be listed first in searches
on certain key words.

Task Force member Rush commented that the task force should wait and gather more
information before crafting a rule.

Subcommittee member Ebbets commented that committee member Ebsary has special
knowledge on technology.

Subcommittee chair Munoz reported that, regarding Rule 4-7.11, the subcommittee consensus
was that lawyer referral service needs to be defined more clearly, but that there is disagreement
whether the current rule is over broad. Some members of the subcommittee felt that entities with
a broader purpose, such as education of the public, should not be covered by the rule.

Task Force member Remsen re-entered meeting.

Subcommittee member Hammond commented that he agrees that regulation of lawyer referral
services is proper and appropriate in that it regulates those with the purpose and business of
referring business to attorneys. However, he defines that as situations with a direct quid pro quo,
with attorneys putting money in with the expectation of getting business back. The situation he
has been in regarding The Fund’s educational campaign is not a quid pro quo. The Fund is a title
insurance company with attorney agents; in the area of title insurance, nonattorneys have been
competing with attorneys for 30 to 40 years. Nonattorneys advertise that members of the public
do not need or want an attorney involved in their real estate transactions. The Fund has an
educational campaign on the real estate process that informs consumers that they should consider
having a real estate attorney. One page on The Fund’s website is listing of The Fund members
that do heavy real estate practice. There is no quid pro quo, and neither The Fund nor The
Fund’s members who are listed know if any referrals result from the public calling The Fund or
visiting its website. The Fund’s educational campaign should not be subject to bar regulation.
To comply with The Florida Bar Board of Governors’ finding that The Fund’s educational
campaign constitutes a lawyer referral service, The Fund removed the lawyer listings from the
website.

Task Force member Rush commented that the other alternative for The Fund was to comply with
the attorney advertising rules, including Rule 4-7.11. The only part of the rule that seems
burdensome is the quarterly reporting to the bar.

Task Force chair Morales asked whether attorneys joining The Fund ask if the Fund complies
with the requirements for a lawyer referral service. Task force member Hammond replied that
they do not, because they are joining to become title insurance agents, not to get referrals.

Task Force member Bain asked the purpose of the quarterly report. Legal Division Director
Boggs responded that the quarterly reporting allows the bar to identify members of the bar


                                               A-16
                                                                                           Appendix D - Page 34
participating in the lawyer referral service and allows the bar to warn the attorneys regarding
following the advertising rules.

Subcommittee chair Munoz commented that the broader purpose behind Rule 4-7.11 is to
prevent attorneys from avoiding application of the attorney advertising rules and prevents
lawyers from doing indirectly what they are directly prohibited from doing. It prevents the
uneven playing field. Subcommittee member Hammond responded that he does not question
that the bar needs a rule, he just disagrees with the breadth of the existing rule. Legal Division
Director Boggs commented that the rule originally was adopted to apply only to referrals with
direct quid pro quo payments. The group or pooled advertising program definition was added to
address the issue of groups of attorneys who got together to run advertisements where referrals
were made only to that group, thereby circumventing the attorney advertising rules.

Task Force chair Morales commented that the task force needs to decide whether the task force
wants to distinguish what The Fund does as opposed to a for profit lawyer referral service or
group wanting to circumvent the advertising rules; another example is local bar associations that
may be caught be the rules unintentionally. Task Force member Rush responded that he does not
see a problem with requiring The Fund to follow the attorney advertising rules. Task Force
member Bain commented that he agreed with the purpose, that if an attorney advertises, the
attorney must follow the advertising rules. He questioned the purpose for the additional
requirements for lawyer referral services, such as the requirement for $100,000 in malpractice
insurance. Legal Division Director Boggs responded that the malpractice limit was adopted to
conform to Chapter 8 of the Rules Regulating The Florida Bar, which sets forth requirements for
Florida Bar sponsored lawyer referral services.

Task Force member Wagner commented if the provision was designed to protect the public, a
better regulation would be to require that all attorneys who advertise carry malpractice insurance.

11.   Heard a report from Subcommittee D, Rules 4-7.7 (Filing requirement), 4-7.8
(Exemptions from Filing) & 4-7.9 (Info on Request) by subcommittee chair Robert Rush.

Subcommittee chair Rush reported that the subcommittee recommends that Rule 4-7.7, the filing
requirement, be amended to require review of advertisements prior to their dissemination. The
subcommittee recommends changing the review period to 30 days to allow staff sufficient time
to review advertisements, because the subcommittee also recommends expanding the filing
requirement to cover some advertisements that were previously exempt from filing. The
subcommittee also recommends adding subdivision (b) (3), requiring an English translation if the
advertisement is filed in another language. The subcommittee also recommends adding
subdivision (d), which clarifies that The Florida Bar is not responsible for checking the accuracy
of factual statements made by the attorney and any inaccurate factual statements will subject the
attorney to possible discipline.

Subcommittee chair Morales commented that the task force should consider on line 1801,
information substituting “information that is required and permissible content of advertisements”
instead of the current language.




                                               A-17
                                                                                            Appendix D - Page 35
Task Force member Munoz commented that the preliminary issue to be discussed is whether to
recommend prior review of advertisements. In his opinion, the U.S. Supreme Court has shown
concerns regarding prior restraint, so not only are there practical issues of how to manage prior
review, but the concern that The Florida Bar may be sued.

Task Force member Bales agreed that the task force needs to discuss the real constitutional issue
involved, particularly since Subcommittee D is recommending that only communications to
current clients be exempt from filing.

Subcommittee chair Rush commented regarding the prior restraint issue, the U.S. Supreme Court
did uphold the 30 day restriction on direct mail in personal injury cases as a reasonable
regulating measure. Task Force member Bales responded that the real issue in the 30 day ban
was that it was a targeted direct mail that invaded the privacy of citizens.

Task Force member Munoz suggested that, if the concern is failure to comply with the
advertising rules, the issue could be addressed with stricter sanctions. Task force chair Morales
asked whether stricter sanctions would be worse for attorneys than prior review.

Task force chair Morales stated that the task force needs to decide whether or not to consider
prior review, then work with staff and outside counsel Barry Richard on the constitutional issues.
Task Force member Bales commented that this task force must address the constitutional issues.

Task Force member Bales commented that he opposes a filing requirement for communications
to former clients other lawyers. Subcommittee member Morales suggested that the task force
consider requiring filing of all television and radio advertisements only. Subcommittee chair
Rush commented that every noncomplying ad hurts all attorneys; he sees problems with the
yellow pages, because each yellow pages ad runs for 1 year. Prior review of all ads would
prevent the running of ads before The Florida Bar even has chance to look at them.

Task Force member Bain commented that if the goal is to address a few bad apples, sanctions are
more effective than prior review.

Subcommittee member Morales commented that sanctions are minimal and have no impact; the
way to ensure the advertising rules are complied with is prior approval. The task force needs to
consider the mission it trying to accomplish, which is regulatory compliance and whether the
burden of waiting for 30 days or less to run an advertisement is so great. Task Force member
Munoz commented that the bar is still early in the process of having a separate statewide
advertising grievance committee. One sanction is fee disgorgement. The task force should
consider waiting to see if there are additional sanctions being imposed with the new grievance
committee and whether or not there is any effect on compliance. He added that the U.S.
Supreme Court has said that any prior restraint is burdensome.

Task Force member Munoz commented in the draft changes to Rule 4-7.7(g), lines 1052-1058,
whether the task force should add as an alternative that attorneys can pull the noncomplying
advertisement.




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                                                                                           Appendix D - Page 36
Subcommittee member Morales suggested striking that failure to comply with the contents of a
filing is “grounds for discipline on lines 1015 and 1028; it should just be grounds for a notice of
noncompliance.

Subcommittee chair Rush reported that the subcommittee discussed requiring filing of public
service announcements. Subcommittee member Remsen commented that lots of attorneys run
PSA’s and they do not comply with the attorney advertising rules. Subcommittee member
Wagner commented that he is not sure how to define PSA; although the task force does not want
to cut off PSA sponsorships, he proposes that PSA’s be permissible, but required to be filed at
the time they are used for no fee. Under that proposal, the bar could look at the PSA to
determine if it, in fact, meets the definition of a PSA or if it is really more of an attorney
advertisement. Task Force member Munoz commented that in the SCA’s experience with the
rule, the factors could be clarified to. Subcommittee member Remsen suggested that the task
force consider adopting a rule that PSA may include any exempt information plus the fact of
sponsorship.

Subcommittee member Wagner commented that he is opposed to the filing exemption for
communications with former clients being exempt; lawyers should not be able to solicit former
clients either. Task Force member Munoz commented that a former client is not a stranger to the
lawyer anymore; additionally, it raises the question of when clients become former clients.
Subcommittee member Wagner responded that it is inconsistent to treat former clients differently
than other members of the public once they become former clients. Subcommittee chair Rush
commented it is only inconsistent if they are viewed as the same in kind. The consensus of the
subcommittee was to include communications to former clients and other lawyers in
communications exempt from filing under 4-7.8(d), line 1110.

The task force discussed the provision proposed by Subcommittee D to require that written
communications requested by a prospective client be filed if the request was solicited by an
attorney advertisement. The task force consensus was to strike “when the request is not solicited
by an advertisement published by or on behalf of the lawyer” in Rule 4-7.8(e), 1115-1116.

Task Force member Meador asked why information on request is treated differently than other
forms of advertising.

The task force agreed to review further the issue of what forms of advertisements must be filed
for review.

Subcommittee member Morales suggested that, because the task force seems to be moving
towards treating information on request more like other forms of advertising, the task force
consider deleting Rule 4-7.9 altogether. Subcommittee chair Rush suggested the task force
consider keeping subsection (a), requiring information on request to comply with Rule 4-7.2,
new subsection (c), requiring attorneys to provide proof of statements upon request, and new
subsection (d), requiring attorneys to provide a disclosure of whether they intend to refer a matter
to another lawyer. Subcommittee member Wagner commented that there deserves to be at least
some mention that if someone requests information, the attorney cannot give false, misleading,
or deceptive information.      Task Force member Bain commented that there is some value to
having a rule that says information on request must comply with Rule 4-7.2. The task force


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                                                                                             Appendix D - Page 37
consensus was to direct staff to draft changes that would move subsection (c) to Rule 4-7.2 and
to strike subsection (d), while further discussing leaving subdivision (a).

12. The meeting was adjourned.




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                                                                                          Appendix D - Page 38
                                  THE FLORIDA BAR
                             ADVERTISING TASK FORCE 2004
                                      MINUTES

                                         June 24, 2004
                                      10:00 a.m. until noon
                                    Boca Raton Resort & Club
                                          Boca Raton

Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen members attended:

Bain                                Leopold                             O’Keefe
Bales                               Lewis                               Remsen
Bogan                               Morales                             Rush
Curtis                              Munoz                               Wagner
Henry

Guests Judge Ralph Artigliere, Alan Becker, Frank Benasutti, Jeffery Cohen, Henry M. Coxe,
Jason Diamond, Charles Douglas, Norwood Gay, Stuart Grossman, William Harrell, President-
elect Kelly Overstreet Johnson, Lynda Keever, Mark Milrot, Chris Mobley, Carl Patterson,
Representative David L. Simmons, Wayne Thomas attended the meeting. Staff members John
Anthony Boggs, Elizabeth Clark Tarbert, Ken Marvin, Gail Ferguson, and Dawna Bicknell also
attended the meeting. The committee took the following actions:

1.    Approved the minutes of the May 11, 2004 meeting. Approved a change to the March
2004 minutes as in the committee’s agenda in legislative format.

2.       Heard comments from bar members and interested persons:

Representative David L. Simmons stated that he was elected to the legislature in 2000. He has
seen in his experience that attorneys have no place in society. The general view as reflected by
his compatriots is if the legislature can get lawyers out of any particular business, transaction or
type of litigation, that will be better for society, it will be simpler and it will cost less. He has
seen this in the efforts to create constitutional amendments to limit attorneys fees. Many people
have come to him and said the only solution to medical malpractice litigation is to cap payments
based on particular injuries and remove attorneys from the system. There is a similar issue with
PIP, where there is a set fee for types of visit and a limit on the number of visits. Workers’
compensation legislation was just passed with a $1500 cap on attorneys fees. Next will be
personal injury in general, where people have suggested to me setting up a workers’
compensation type system and reducing rights of victims. From the inside looking out, in 5, 10
or15 years, unless something is done with respect to the way attorneys present themselves to the
public, the practice of law is going to be dramatically different than the way it is today. The task
force has a significant responsibility, because attorney advertising is one of the prime reasons
there is such disdain for the legal profession. Spending Florida Bar dues on running advertising
to get the public to believe that lawyers are good people is a waste of money, because until
advertising by lawyers in Florida is cleaned up, the disdain and dislike people have for lawyers
and the legal system will not change. Representative Simmons sponsored House Bill 1357 to


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                                                                                              Appendix D - Page 39
regulate attorney advertising that passed the house this session and would have passed the
Senate. He hopes that was a shot over the bow. He has checked the constitutionality of
regulation by the legislature, and regulation of attorney advertising is not the exclusive province
of The Florida Bar or the Supreme Court of Florida. It is the bar’s responsibility to regulate
attorney advertising, and if the bar and supreme court will not, the legislature will. Your
responsibility and if you don’t legislature will. There are members of the legislature who would
go much further than House Bill 1357. He has been told that the Board of Governors passed a
resolution that The Florida Bar is in favor of regulating attorney advertising to the fullest extent
constitutionally permissible. There is an alternative to restricting advertising and that is
requiring disclosures. For example, in advertising for personal injury matters, an attorney could
be required to disclose that the client may be exposed to fees and costs if they lose. The task
force should look at what kind of disclosures can be required so there is not deceptive
advertising. Zauderer addressed that issue and said that disclosures may be required.

Mr. William Harrell stated that he is a Board Certified Civil Trial Lawyer rated AV and
President of the First Amendment Society, which is an organization including 87 law firms, most
of which advertise. Members are advertising law firms and member of the media community.
He provided a bound copy of a summary of all law pertaining to the issue of attorney advertising
since Bates. Everything Representative Simmons said was incorrect. Representative Simmons
says studies show advertising attorneys are held in contempt. This is not true. ABA studies
show that advertising lawyers are accepted. Only 1 study shows advertising lawyers are not
accepted by the public. The public accepts advertising by lawyers, but lawyer advertising is not
accepted by lawyers. When Mr. Harrell was not a personal injury lawyer, he opposed
advertising. While on sabbatical, he taught constitutional law. He has found that the principal
beneficiaries of attorney ads are lower, socio-economic classes and minorities who don’t have
access to attorneys. The marketplace will take care of the 1-800 pitbulls - they demean the
professional and will get squeezed out. That kind of advertising abuse is a very small minority.
The Florida Bar and Kentucky are the 2 most restrictive states. 40 states have no restrictions.
Kentucky has prior restraint and is abandoning that position because it is legally insupportable.
When Kentucky withdraws that restraint, Florida will be the most restrictive state. There are
things that can be done to correct some of the bad advertising that is taking place, short of taking
a hammer and approving prior restraint. The task force members should read the materials
provided. Much of The Florida Bar regulations cannot withstand constitutional scrutiny. The
First Amendment Society is happy with the existing bar regulations. They are reasonable
restrictions that still allow effective advertising. Don’t adopt Representative Simmons’ view that
more is better.

Mr. Wayne Thomas is Vice-chair of the Unlicensed Practice of Law Standing Committee. He
wants to raise a couple of issues that are micro issues rather than macro. The UPL Standing
Committee would like to see the task force adopt a rule that requires lawyer referral services to
identify themselves as lawyer referral services in all advertising. For example, there is a lawyer
referral service called “Total Help” that does not say it is a lawyer referral service. People seeing
the advertising think it is a law firm. That lawyer referral service is also in violation of existing
bar rules because the ad appears in Portuguese, but the disclaimer language is in English. The
task force needs to go that further step and also require lawyer referral services to affirmatively
state they are lawyer referral services in all ads. The second issue has not been voted on by the
UPL Standing Committee, but is an issue Mr. Thomas has noted. He is concerned about


                                                A-22
                                                                                             Appendix D - Page 40
nonlawyer organizations that solicit business in ways attorneys cannot, then refer the matters to
attorneys. The attorney is getting business from a nonattorney who advertises in a way that
attorneys cannot. For example, there is a former stock broker that goes out and gets clients, sees
if they have a case, works up the file, then refers it out to an attorney. We believe the stock
broker is engaging in UPL and is advertising in an unethical way. This conduct is implicitly
prohibited by the rules, but he would like to see it explicitly prohibited by adoption of a rule
prohibiting attorneys from accepting referrals from a source of advertising that attorneys cannot
engage in.

Mr. Stuart Grossman stated that he served on the board for many years, and has been named trial
lawyer of the year. He disdains advertising and spoke out against advertising during his 6 terms
on the Florida Bar Board of Governors. He believes advertising demeans the profession and
diminishes the services that lawyers provide. Advertising blurs the distinction between image
and reputation. An advertising lawyer thinks he can buy time, buy talent, appear to have
resources and experience, and look like a wining lawyer, none of which is true. If Mr. Grossman
advertised, he would like to talk about results, which is prohibited. There is nothing else the
public really wants to know, but a lawyers record of verdicts and settlements. He has practiced
for 31 years and has no knowledge of most of the lawyers who advertise. The whole thing is
upside down, and the worst thing is the most important information the public would want to
know is withheld - the comparison of verdicts, trials and settlements. The bar’s dilemma is how
to legitimize the right of the public to know about lawyers, but for lawyers to tell the truth.
Advertising now is misleading: it is whatever the advertising lawyer wants it to be. A lawyer’s
flaws do not appear on T.V. and the line between reputation and image is totally blurred. He
resents the implication that minorities do not have access to law firms. The contingent fee is
every person’s opportunity to have the best attorney available at the same rate as any other
attorney. Minority clients are not struggling to find a law firm, and that issue is a red herring. It
is sad that we take things called the first amendment and we take things called minority appeals
and we wrap that around some of the smarmiest things on television. He has a friend who is a
screenwriter in L.A. who says that lawyer advertising is an old issue - the sky is not going to fall.
Mr. Grossman thinks that every day it rains a little bit more on the legal profession. It is the
difference between image and reputation, and the lawyers who make images into reputations are
hurting the rest of the profession. If the advertising task force can somehow make the truth come
out in advertising, then they would accomplish something.

The Honorable Ralph Artigliere spoke on behalf of the Board of Legal Specialization and
Education, who also has a micro issue to raise before the task force. Under the current rules,
only board certified attorneys can state that they are specialists or experts. He received a letter
from a board certified lawyer who is concerned that lawyers who are not board certified are
advertising that their practice is “limited to” an area. That member believes that stating “practice
limited to” is no different than claiming specialization. It is confusing to the public for lawyers
to state that their practice is “limited to” an area. The fact is, when viewed from the public’s
perspective, the public will never be able to tell the difference between a board certified lawyer
and one who says they limit their practice to a certain area. It is misleading and could send the
public to the wrong lawyers. Another potential issue is lawyers who indicate they limit their
practice to “advanced estate planning” and similar titles. This area may be something the lawyer
has no ability to do. Board certified lawyers must have a certain level of experience and are
tested. A person who says that their practice is “limited to trial” may have no trial experience.


                                                A-23
                                                                                             Appendix D - Page 41
It lets someone accomplish through advertising what board certified lawyers have worked hard
to achieve. The purpose of board certification is to benefit the public by identifying attorneys
with special abilities and qualifications. Board certification is also a trademark that must be
protected, and this type of advertising waters down that trademark. He urged task force
members to read the BLSE’s letter in their materials and thanked them for their consideration.

Mr. Jeffrey Cohen, current chair of the BLSE, stated that he practices in complex commercial
litigation, which makes him sound like an expert. He is an expert, because he has done what is
required to hold himself out to the public as an expert. The rules say that only board certified
lawyers can use language that connotes special expertise. There is no problem advertising that
the lawyer practices personal injury, for example. It is the modifier of “limited to” that is
pregnant with the peril of misleading the public and flies in the face of what the rules were
designed to do.

Mr. Frank Benasutti stated that for the last 38 years, his avocation has been ethics and
professional responsibility. He chaired the Pennsylvania Bar’s professionalism committee and
was a special assistant to the Pennsylvania Supreme Court in adopting the professionalism code.
He has been recognized as an expert in the field of ethics. His overall view of the code is that it
is not about professionalism. The code says an attorney shall, must or should, then everything
after “except” is about business, not ethics. Each state makes a laundry list of exceptions. The
task force should adopt the Supreme Court’s definitions from Zauderer, in which Mr. Benasutti
appeared as an expert witness, and his position was adopted by the Supreme Court in that case.
If the task force is interested in learning how the public obtains information, people do not read
anymore, they watch television.

Chair Manuel R. Morales welcomed President-elect Kelly Overstreet Johnson and Florida Bar
Board of Governors member Henry M. Coxe to the meeting.

Regarding the issue of referral fees, attorneys were surveyed to see if they engaged in referral
fees. After the survey, the supreme court changed the rules to allow referral fees. The public
ought to know everything about attorneys. The supreme court changed the rule on referral fees
to make sure the public gets to the right attorney. If referral fees were not allowed, the
temptation is for attorneys to keep the cases for themselves, even when they are incompetent to
handle those cases. There is something wrong with rules that do not allow attorneys to give
truthful information to the public so that members of the public can make well-informed
decisions about the selection of an attorney. He does not like the safe harbor limitations, or the
fact that the rules can be changed so easily and often. He suggested that the task force take
surveys on what information is going to the public and base their decisions on what should be
restricted from what is actually being conveyed. If something is not dignified, the public is
aware of it. It is not the standard of the task force or of lawyers that counts, it is the standard of
the public. The Zauderer standard is that lawyers not be sanctioned for printed advertisements
containing truthful and non-misleading information and legal advice. The burden on the task
force is if the information is false, misleading or harmful, the regulation is necessary.

Ms. Lynda Keever, publisher of Florida Trend magazine, stated that she was the first person to
speak who is not an attorney. She speaks as a publisher who accepts legal advertising in her
magazine. She applauds the task force as a group for convening and re-examining the attorney


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                                                                                                Appendix D - Page 42
advertising rules. She has been a publisher for 13 years, and her experiences as a publisher of
legal advertising are both exciting and frustrating. Most of her experience is with large firms
with marketing directors, public relations firms and consultants. Most recently, her magazine
published the Florida Legal Elite. The magazine reached out to smaller firms with small to no
advertising budget and asked where they considered the best place to put their money. It gave
her insight into the challenges these firms have. Some managing partners told her that they draw
straws among the partners to decide who has to handle advertising. The rules are so onerous that
lawyers do not want to deal with advertising. In research of advertising by professionals such as
attorneys, engineers, and accountants, it is rare for clients to make a decision solely based on
advertising, such as calling and saying I am hiring you because I saw your ad in Florida Trend.
But people do say “I saw your firm in Florida Trend.” There is a mix of how attorneys are
selected, through advertising, research, advice from friends and other sources. If the bar’s goal is
to stop small and medium sized firms from advertising, the bar has met that goal. The hassle
factor is overwhelming to these attorneys. The rules are too complex, attorneys do not have time
to review them and do not have staff that understand the nuances of the rules. Some attorneys
would rather not advertise than submit an ad for review and have it rejected, because they feel
they will look unprofessional if others find out. Preparing an ad is expensive for law firms,
particularly if the ad is rejected and has to be re-produced. The rules are open to interpretation
and, she has been told, open to interpretation based on which staff attorney reviews the ad. She
asked for a list of magic bad words and was told there was no such thing. Her magazine
contracts with attorneys state that the attorney must comply with Florida bar rules. Her staff
thought the attorneys would know the rules, but half the attorneys in Legal Elite did not know
their ads had to be submitted to the bar for approval. One ad was even approved by the bar
without having the hiring disclosure. She as a publisher cares about the bar rules and does not
want to allow an attorney advertising in her magazine to violate the rules if they are easy to
follow. The Florida Bar attorney advertising rules put Florida law firms at a competitive
disadvantage, because national firms in the national media do not have to comply with Florida’s
rules. She also encouraged the task force to be sensitive to deadlines imposed by the media,
especially if they recommend prior approval. It takes a certain amount of time not only to obtain
bar approval, but to produce an ad. Bar members and publishers need a set of quick guidelines
and do’s and don’ts.

Mr. Carl Patterson stated that he was on the Standing Committee on Advertising for seven years,
including chairing the committee for two years, was the first public member of a bar committee
to become chair of the committee, and currently serves on the statewide Advertising Grievance
Committee. He stated that Florida Bar staff is excellent, and the current rules are clear and not
new. Any set of rules can have minor changes made. The problem that he sees from his bar
service is dumb, lazy attorneys who fail to properly prepare their ads, fail to read the rules, and
choose to listen to yellow pages sales representatives and others who do not know the rules. He
has continuously seen false, misleading statements made in ads, for example, failure to state that
an associate is not a member of the bar. Initially, the committee saw large firms, but now mostly
are seeing small firms. Some attorneys are new, some have 20 years experience. He wonders, as
a layperson, how those lawyers ever win a case in court. The statewide Advertising Grievance
Committee has been good at providing consistency with discipline. He would like to see harsher
penalties for violators, such as banning them from advertising for a set period of time if they
have more than two violations in a five year period. He is unsure whether the court would adopt
such a rule. He would also raise the filing fee for late fees and charge an additional fee for any


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                                                                                            Appendix D - Page 43
case where probable cause is found. The bar has a handbook with guidelines and do’s and don’ts
that is available through the website, but attorneys don’t read it.

Mr. Chris Mobley, from the Daily Business Review, stated that he was impressed with the task
force’s patience and willingness to listen. He shares the same viewpoint as the publisher of
Florida Trend. He is the President of the Florida division of American Lawyer Media, a trade
publication around the country, and publishes the Daily Business Review in South Florida. The
revenue to his publication from lawyer advertising is less than 4%. The Florida Bar wants to
protect the public and the undereducated consumer, but he cautioned the task force about the
sweeping nature of the rules. The rules limit the attorneys ability to speak to other attorneys and
business people. The task force should consider making distinctions between those types of
sophisticated individuals and the general public. By making the rules so broad, there is undue
restriction of Florida law firms to compete for referrals from other lawyers and sophisticated
business people. It inhibits their ability to compete for commercial work from business
executives who are sophisticated consumers. The rules put Florida lawyers at a competitive
disadvantage with firms from other states. He applauds the committee’s work in protecting the
public, but thinks the task force should make a distinction between the general public and
targeted media that goes to other lawyers, other professionals and sophisticated businesspeople.

Mr. Alan Becker stated that the last time he attended a bar meeting, he had an advertising appeal
that was ultimately overturned by the board of governors. In trying to regulate attorney
advertising, the bar has misconceptions. First, the bar tries to treat the practice of law as a
profession, not a business. Lawyers are in business, they must make payroll, must compete for
talent and retain talent, must pay bills. The bar is restricting lawyers’ ability to compete. Law
can be a noble profession and also allow advertising. As a fairly large law firm, his firm has an
advantage over small to mid-size firms because he has an in-house marketer. However, he is at a
disadvantage to larger firms such as Holland & Knight, because they have many in-house
marketers. The cost of changing ad campaigns is less to Holland & Knight, because all of their
production is in-house. He is also at a disadvantage competing with national firms that are not
required to follow the bar’s rules, but are competing for the same national clients. He pointed
out a large law firm’s ad that contained language that is impermissible in Florida: “we provide
quality legal representation and solutions,” “I will be there to guide you to clear waters,”
“providers of the highest quality legal services,” and “leaders in today’s complex arena.” He
also pointed out an ad by Maguire Woods that shows a general counsel of a corporate client
providing a testimonial, which is prohibited under Florida’s rules. He and other Florida lawyers
are competing with these firms and cannot compete at their level. The bar’s well-intentioned
efforts to protect the public have one effect: they harm Florida lawyers. It does not make better
professionals to put lawyers out of business. There are 40 states living under the ABA Model
Rules and there are no horror stories. The bar should not be in the business of protecting people
from themselves if they choose a lawyer based on a bad or tasteless ad. The rules are confusing,
impossible to follow and lack standards. In his own ads, the bar has approved “skilled” but not
“talented,” approved “competent” but not “talented” or “innovative.” The answer depends on
whose desk the ad arrives at. The bar thinks people are so stupid they cannot distinguish
between puffery and real information. The average American views about 13,000 advertising
impressions each week. The public is used to ads and they understand them, and the bar needs to
give them more credit. If the bar wants to protect consumers from themselves, the protection
should be limited to the general public. Sophisticated consumers don’t need protection. Ads


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                                                                                            Appendix D - Page 44
going to in-house counsel and big executives are different than an ad going to someone whose
loved one was killed in an accident or hauled off to jail. The task force should not devise rules
using a broad brush. The only other ads that are regulated to this degree are ads for alcohol and
tobacco - these are items that can kill people and that impact children. Surely the bar does not
equate lawyers with alcohol and tobacco. Other professionals such as doctors, accountants, and
bankers do not have this level of regulation. Please lighten up on business to business
advertising.

3.     Discussed the future meeting schedule. The task force will meet via conference call in
July on a date to be determined. The chair announced that any others seeking to have input
should provide their comments or requests to Ethics Counsel.

4.     The meeting was adjourned.




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                                                                                           Appendix D - Page 45
                                  THE FLORIDA BAR
                             ADVERTISING TASK FORCE 2004
                                      MINUTES

                                         July 26, 2004
                                    2:00 p.m. until 5:40 p.m.
                                      Via Conference Call

Chair Manuel R. Morales, Jr. presided over the meeting. Nineteen (19) members attended:

Bain                               Hammond                             O’Keefe
Bales                              Huang                               Remsen
Bogan                              Leopold                             Rush
Bullard                            Lewis                               Sellers
Curtis                             Meador                              Wagner
Ebbets                             Morales
Ebsary                             Munoz

Guest Cynthia Brown of the Senate Judiciary Committee and staff members Mary Ellen
Bateman, Gary Blankenship, John Anthony Boggs, Lori Holcomb, Elizabeth Clark Tarbert, and
Arne Vanstrum also attended the meeting. The committee took the following actions:

1.      Approved the minutes of the June 24, 2004 meeting, but deleting the second sentence
attributed to Representative Simmons.

Task Force member Leopold joined the conference call.

2.      Discussed the oral and written comments by bar members. Task force member Rush
stated that there were polar opposite views in the comments, which were somewhat helpful in
laying out landscape. There were contradictory assertions regarding advertising in general; for
example, William Harrell said advertising is necessary to reach minorities and lower socio-
economic classes, while Stuart Grossman said it is not. Task force member Rush stated that he
thinks the task force needs a body of data collected to decide whose views are accurate - is
advertising helpful and necessary or does it just help lawyers? Is a particular form of advertising
harmful? Those are threshold questions that need to be answered. Task force member Sellers
stated that he shares that view. After the meeting in Tallahassee, he obtained a copy of Lawyer
Advertising at the Crossroads, which was an extensive study done by the ABA that surveyed
results from other states. The results were different depending on how the questions were
couched. He thinks the task force needs more information on how the public really feels about
this issue. All the Florida studies were done some time ago, and there is a younger population
now. Advertising is pervasive among all professions, including the medical profession. Task
force vice-chair Ebbets stated that he had 2 points: first, the communications committee has
approved a budget item that he believes is related to a survey of lawyers that includes some
advertising questions. His second point is that a public survey is an issue that has been discussed
by board in the past. The task force leadership should determine if there is a possibility of board
funding for a survey on advertising. Possibly there is some information that may be gleaned
from the dignity in law campaign. Task force members Leopold and Sellers stated that


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                                                                                           Appendix D - Page 46
information on lawyers’ attitudes towards advertising is irrelevant if the bar is interested in
protecting members of the public. Task force member Sellers added that if the purpose is to
enact rules that are designed to protect the public from misrepresentation and other unscrupulous
behavior, the task force needs to hear from the public as to what they think are issues. Task
force vice-chair Ebbets stated that the Board of Governors has an advisory board called the
Citizens Forum made up of nonlawyers who have uniformly told the board that advertising in its
present model has wounded the profession. Task force member Rush stated that he would hope
that a survey would answer the questions posed at annual meeting. He would like to see
information from the public as to whether they are getting useful, relevant, accurate information
regarding attorneys from advertising. Task force member Hammond asked if the task force
would have the financial wherewithal to do a broad based study that could be definitive, given
Florida’s diverse and large population. Task force member Rush responded that the
Communications Committee was told that 1100 responses would be a sufficient size. Task force
chair Morales stated that he wanted the task force to focus on what is to be accomplished today.
If the task force does a survey and find that 90% of people hate attorney advertising, there still
must be rules to address it. If 90% of people love ads, there still must be rules to address
advertising. There are already rules, the task force needs to decide which ones to keep, which
ones to change and which ones to add, if any. Task force member Remsen commented that he
would like to hear some discussion among the task force of whether there should be a distinction
between commercial law firms going after sophisticated business clients and lawyers with a
more consumer-oriented practice such as personal injury, criminal or family law cases. Task
force vice-chair Ebbets volunteered to find out what information has been recently gathered by
the bar on the issue of attorney advertising and report back to the full task force.

Task force member Wagner joined the conference call.

Task force member Rush commented that the specific recommendations by BLSE need to be
addressed by the task force.

Task force member Huang added that the task force should also address the issues raised by the
UPL Standing Committee Vice-chair who raised the issues of lawyer referral services being
required to state that they are lawyer referral services in ads and also taking referrals from third
parties who advertise in ways attorney cannot.

Task force member Bain commented that he wanted to highlight the comments of Stuart
Grossman who made a point regarding attorneys who are experienced and have had successes in
the courtroom, that the current rule handicaps them from telling prospective clients those results.
The rule restricts advertisers from providing useful information that prospective clients might
really want to know, and he thinks the task force should address that. Task force member Lewis
agreed that needs to be discussed and questioned whether the advertising rules will continue to
treat that differently for information on request.

3.     Task force chair Morales stated that his goal for the conference call was to obtain
consensus on the concepts, then direct staff to draft the concepts in the rules.

Discussed the following specific issues:




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                                                                                              Appendix D - Page 47
       a. Should information provided at the request of a prospective client be subject to the
       attorney advertising rules? If it is subject to the attorney advertising rules, should it be
       exempt from any of the rules (such as the current exemption from the prohibition against
       track record results and statements characterizing the quality of legal services)?

Task force member Lewis stated that he does not think there is any real problem in the
community, the public or with lawyers with the status quo. When people are requesting
information, there is no problem. The problem is for invasive ads not at the prospective client’s
request. Task force member Remsen agreed. Task force chair Morales stated that, even if the
task force recommends changes to the rules that would make them inapplicable to information on
prospective clients’ request, there is still a general rule that prohibits lying that would apply to
information on request. Task force member Sellers commented that the distinction involved is
that members of the public have made choice to obtain info regarding the attorney as opposed to
receiving information on an unsolicited basis. Task force member Hammond commented that if
the public has made a conscious choice to obtain information, then the task force should be very
wary of restricting access to that information.

Task force member Wagner asked if the task force protects the public by allowing a lawyer to
run a flashy ad that says ask the lawyer to send more information; that is a distinction without a
difference. Task force member Rush responded that the information falls into an area that is
difficult to determine whether it creates unjustified expectations. Trial verdicts are no indication
of what a result will be. Task force member Wagner stated that if Mr. Grossman says he has had
5 multimillion verdicts, there is no difference than if he says he has been very successful, call
him and ask. Task force member Lewis stated that he is not sure the goal is to protect anyone
from ever knowing the information, the issue is the invasion of privacy and whether there is any
expectation of being bombarded with the information. Task force member Wagner stated that
the Supreme Court has allowed total regulation of advertising of pornography, although it does
not restrict the public from buying pornography. If TV. ads were eliminated, that would do away
with the public’s objections to advertising. Task force member Lewis responded that would be a
serious constitutional issue. Task force member Bain commented that there should at minimum
be a rule that states that information on request cannot be false or misleading. Task force vice-
chair Ebbets made a motion to direct staff to draft a rule that the attorney advertising rules are
not applicable to information on requested, which was seconded by task force member Lewis.
Motion passed, with members Bain, Bogan, and Wagner opposed.

Task force member Wagner raised his written motion about determining guiding principals in
going through the issues raised by the chair in the agenda. The motion failed, with members
Bogan, Hammond, Leopold and Wagner in favor of the motion.

       b. Should information provided at the request of a prospective client be subject to the
       filing requirement if the task force determines that it is subject to any or all of the
       attorney advertising rules?

The consensus of the task force members was that information on request should not be subject
to a filing requirement, consistent with its decision that the attorney advertising rules in general
should not be applicable to information on request.



                                                A-30
                                                                                              Appendix D - Page 48
       c. Should permissible content of advertising be expanded to include military service
       (including branches and dates of service), punctuation marks, common typographical
       marks, the statue of liberty, the American flag, the American eagle, the State of Florida
       flag, an unadorned set of law books, a courthouse, columns, diplomas, and commonly
       recognized religious symbols (such as the cross, fish, Star of David)?

Task force member Munoz raised the issue of whether federal statutes prohibit the commercial
use of the American flag. The task force consensus was to approve the list of additional
exemptions subject to deleting the American flag if its use is prohibited by statute. Task force
member Ebsary volunteered to research the issue. He reported that his reading of the statute is
that it is limited to advertisements in Washington, D.C.

       d. How should the task force treat lawyers who intend to refer out the cases that they are
       advertising for? Should the lawyer be required to disclose the intent to refer out cases in
       the advertisement itself?

Task force member Bogan commented that statutes force mortgage companies to disclose the
likelihood that a mortgage will be sold and sees no difference for this issue. Task force member
Lewis agreed that lawyers should be required to disclose an intent to refer cases out. Task force
member Wagner asked what the likelihood is that a lawyer would claim that the lawyer had not
decided at the time the advertisement is run, therefore the rule is just nitpicking. Task force
member Rush stated that the rule addresses a real problem that is out there. The rule does not
apply to a general practitioner that has not decided. Task force chair Morales asked about the
lawyer who does personal injury, but does not do trial work - does such a lawyer have to disclose
to prospective clients that the lawyer will not handle the trial? Task force member Bogan stated
that in such an instance, the triggering event is the filing of a lawsuit; if the lawyer knows on the
front end that the lawyer will not handle the trial, the lawyer should have to disclose that to
prospective clients. That goes to the issue of who client believes he or she is hiring. If the task
force requires otherwise, the client does not know the other lawyer is in the picture.

Task force chair Morales stated that he sees a distinction between a lawyer who does nothing on
a case and a personal injury lawyer who on a particular case or a particular type of case decides
to refer it out. Task force member Lewis stated that he does not think the task force should go
backwards and take away a protection. Task force member Bales stated that the task force is
trying to make the rules easier to understand; the rule is fraught with problems, because it is hard
to interpret. It is good for lawyers to refer out cases; if a lawyer is not competent to handle a
particular case, the lawyer should refer it out. Task force member Lewis states that the task force
needs to reach a general consensus and asked whether the conduct happens across the state.
Task force member Wagner stated that the task force could do a lot more in this area if it
required mandatory disclosure of liability insurance and of the percentage of cases referred out
per year. The rule is frustrating for the bar to enforce.

Task force member Rush stated that task force members are reading the question way too
broadly. The rule is intended for lawyers who intend to refer out the cases they are advertising
for, not for the lawyers who intend to take cases and decide a particular case is not for them. It is
that specific and limited. Task force chair Morales stated that the task force must be very limited
in what it is trying to prohibit here, because the task force does not want to discourage lawyers


                                                A-31
                                                                                             Appendix D - Page 49
from seeking help when they cannot competently handle a case. It sounds like those in favor of
the rule want to limit attorneys from doing nothing but brokering cases. Task force member
Lewis asked if anyone has ever been disciplined for violating the rule. Staff reported there were
none. Task force member Wagner stated that if the bar wants to regulate brokering cases, it does
not need to regulate advertising, it needs to regulate brokering. Task force member Lewis stated
that the task force should not recommend vague, unenforced and unenforceable rules. A motion
to delete rule passed, with task force members Munoz, Bogan, Hammond, and Sellers opposed.

       e. Should the rules include a definition of "advertising" or "advertisement?" If so, what
       should the definition be?

The task force directed staff to draft a definition or multiple definitions for the committee’s
consideration.

       f. Is a communication between lawyers subject to the attorney advertising rules? Is it
       clearly excluded in the current rules? Should it be?

Task force chair Morales stated that at the last meeting, there seemed to be a consensus that
communications between lawyers should not be subject to attorney advertising rules and should
be clearly excluded. Task force member Rush stated that he thinks there is a difference between
communications between lawyers and ads directed at lawyers. Task force member Wagner
stated that there could be an issue if a lawyer is using other lawyers as a pass-through to
prospective clients. Task force member Bogan posed a hypothetical to the task force members of
communications from attorneys advertising what they can and cannot do that he receives at the
Attorney General’s Office. Before he receives his mail, it probably goes through no fewer than
10-15 sets of nonlawyer eyes that look at that ad before it gets to him, because that is office
protocol. The same protocol exists in other agencies. Looking at it from the perspective of the
sender, is that a way to circumvent the rules? To say an ad is lawyer-to-lawyer does not mean
that before it gets to the lawyer that others have not seen it. Task force member Wagner asked
whether an ad published in the bar news directed at other lawyers is an ad. When he thinks of
communications between lawyers, he thinks of newsletters sent specifically to other lawyers for
the purpose of getting referrals. He does not see communications between lawyers as including
cocktail talk or an ad in bar news, or an ad in local bar newsletter. Task force member Rush
stated that he does not believe that is the issue. He would like to see consistency in the rules.
There are some differences between what lawyers can do in radio/t.v. versus direct mail. Those
rules should apply even if the advertisement is directed at another attorney. That is different than
a lawyer sending a letter to 5 lawyers in Miami saying I have a case that is a Miami case, are you
interested in representing that client? Lawyers are subject to the same issues that the general
public is regarding creating unjustified expectations, etc. Task force member Lewis stated that
he thinks that the task force should not be concerned about what other lawyers think regarding
newsletters. Task force member Bales stated that the task force should concentrate on regulating
what is truly bad and leave the rest alone to not burden other lawyers. He is concerned about the
bar wasting resources on things that are not causing a problem. Task force member Lewis
agreed that the task force should worry about what the public thinks about lawyers and should
not concentrate on what lawyers think of other lawyers. Task force member Munoz stated that
one issue that has come up in the SCA is whether lawyer-to-lawyer communication should be
treated differently when the lawyer is receiving the communication in the role of representing


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                                                                                             Appendix D - Page 50
clients (such as a consumer or as a prospective client that happens to be a lawyer) than in other
roles? The task force determined that the communications should be exempt from the attorney
advertising rules, that should be clear in the rules, and directed staff to draft rules reflecting that
decision, but with task force member Rush opposed.

        g. Should out of state lawyers who advertise in Florida be subject to Florida's rules? If
        so, what advertisements by out of state lawyers should be covered?

UPL Director Lori Holcomb reported to the task force that there are rules pending at the
Supreme Court of Florida that arguably would subject out of state attorneys to the attorney
advertising rules when the out of state attorneys are advertising for services that they legitimately
provide in Florida matters. Generally, an out of state attorney cannot advertise for services that
they are not authorized to provide. UPL looks at ads from out of state attorneys on a case-by-
case basis - if they are advertising for services they are not authorized to provide, UPL tells the
out of state attorneys to stop. Task force member Bogan raised the issue of attorneys living in
border communities, such as in Tallahassee or Pensacola. Task force member Wagner asked
about UPL’s position regarding out of state attorneys advertising ad in national magazines that
are disseminated across the country. UPL Director Holcomb responded that multistate firms
advertising in national media is a more difficult question. She added that the real problem is the
NY attorney who moves to Florida and opens an office to provide an authorized practice, like
immigration, but who does not follow the attorney advertising rules, e.g., a D.C. lawyer who
moves to Miami. D.C. allows in-person solicitation, while Florida does not, so the D.C. bar will
take no action against the D.C. bar member.

The task force directed staff to draft rules subjecting out of state lawyers to Florida’s attorney
advertising rules.

        h. Should lawyers be required to disclose a bona fide office location in all ads?

Task force chair Morales stated that the question is whether a client should know from the get go
that the advertising attorney is located in a particular location. He does not see that as being
absolutely necessary. Task force member Ebsary raised the issue of restraint of trade. Task
force member Munoz stated that the information is relevant, because in many cases, the client
will pay more money in costs if the lawyer is located far away than if the lawyer is nearby. The
consumer may not know where the attorney is located until the attorney has already persuaded
the consumer to hire the attorney. Task force member Lewis stated that the task force has heard
no clamoring from the public. Task force member Bain responded that there are no complaints
from the public because it is a current requirement. The regulation puts no burden on the
attorney and provides useful information that prospective clients would want to know. The cost
of litigation will be higher if the attorney is located further away. It also will not look good if the
task force loosens that restriction. Relaxing this rule does not benefit the public. Task force
member Ebsary stated that every rule will be subject to a possible constitutional challenge. Task
force member Rush stated that the task force should have history of rule before doing anything to
change it. There is no burden to the attorney in requiring the geographic location, and public
harm could occur if it is not required.




                                                  A-33
                                                                                                 Appendix D - Page 51
The task force voted 9-7 in favor of retaining the requirement that lawyers include the
geographic locations of at least one bona fide office in all advertisements.

       i. Should the current requirement be retained that lawyers who advertise local telephone
       numbers where they have no bona fide office make an appropriate disclosure that it is a
       phone number only, not an office?

The task force consensus was to delete the rule, in light of the geographic disclosure requirement
above.

       j. Should the current requirement be retained that all required information must be at
       least one-quarter the type size of the largest type used in the ad?

The consensus of the task force was to delete the requirement that all required information be in
type size that is one-quarter the type size of the largest type used anywhere in the advertisement,
while retaining the requirement that required information be clearly legible/clearly intelligible.

       k. Should the hiring disclosure for print ads be eliminated? ("The hiring of a lawyer is
       an important decision that should not be based solely on advertising. Before you decide,
       ask us to send you free written information about our qualifications and experience.")

The task force voted to delete the hiring disclosure in print ads with task force members Bogan
and Rush opposed.

       l. Should "prior professional relationship" in the solicitation rule be defined or changed?
       (The rule states that a lawyer can directly solicit a family member or someone with whom
       the lawyer has a "prior professional relationship.")

Task force member Ebsary stated that the task force is on firm constitutional ground with in-
person solicitation; there is harm and there is a prior history with difficulty. Task force member
Munoz stated that the question is how far the bar should regulate and whether there should be
exceptions between professionals or persons who meet in certain contexts. He thinks that prior
attorney-client relationship is too narrow a definition. Task force member Lewis stated that his
concern is possibly opening up the door. A lawyer is a professional, so every relationship a
lawyer has could be considered a professional one. He would like to see a more narrow
definition rather than more broad. Task force chair Morales stated that the task force does not
really need to define solicitation. It needs to decide whether or not to except “prior professional
relationship” and who would be included. Task force member Lewis stated that he does not
think lawyers should be allowed to solicit prior clients either, but solicitation definitely should
not be expanded to others. He can understand exception for family members and even current
clients, but not prior clients. He believes that the task force should treat personal injury cases
differently than other areas of practice regarding solicitation.

       m. Should criminal defense lawyers be prohibited from sending direct mail
       communications within 30 days of arrest (extending the prohibition currently for personal
       injury to criminal)?




                                                A-34
                                                                                             Appendix D - Page 52
Task force member Willard stated that since the last task force meeting, he has had numerous
clients come in to his office complaining about receiving direct mail in criminal cases. He
supports extending the 30 day ban to criminal cases. Task force member Sellers disagreed,
stating that criminal defendants need to see a lawyer within 30 days, because so much can
happen in a criminal case within 30 days of an arrest. Most criminal defendants usually have an
arraignment sooner than 30 days of the arrest. A lot happens at arraignment, including talking
directly to a prosecutor when it might not be in the defendant’s interests. They also might get
advice on the fly from a public defender who knows nothing about the case. Task force member
Willard responded that task force member Sellers is suggesting that lawyer advertising can make
up for defects in the system. What rights are criminal defendants losing by not getting a
mailout? Task force member Sellers responded that the issue is whether the criminal defendants
are receiving information that allows them to assert their rights. Task force member Bogan
asked whether criminal defendants can obtain the same information from the yellow pages. Task
force member Lewis stated that the task force should look where people are going to attack.
Making personal injury lawyers wait 30 days and not making criminal lawyers wait the same
period where the criminal defendants have already been informed that they have a right to a
lawyer is inconsistent. Task force member Ebsary stated that he is a board certified criminal trial
lawyer and he has only heard of one problem with direct mail in criminal cases, and that is where
someone received a mailing for someone who was deceased. The issue is protecting people from
real harm. In Tampa, criminal defendants must have their court dates set within 10 days. There
are only 10 days to set administrative hearing after someone has been arrested for DUI. The 30
day rule in personal injury cases was the result of a specific instance of real harm. Extending the
30 day rule will raise anti-competitive issues. Task force chair Morales stated that criminal
defense attorneys argue that in 30 days in a criminal case, a criminal defendant can waive
important rights. Nothing much happens in first 30 days of a personal injury case. Task force
member Rush stated that an injured person can settle a personal injury case with an adjuster in 30
days. Task force member Bogan stated that he lacked sufficient information to decide.

Task force member Hammond left the conference call.

The task force directed staff to draft language extending the 30 day rule to criminal cases for the
task force’s consideration at a later meeting, deferring a decision on the proposed rule change.

       n. Should communications sent only to other lawyers, family, and prior clients be
       exempt from the advertising rules?

The task force tabled consideration of this issue until the next meeting.

       o. Should communications sent only to other lawyers, family, and prior clients be
       exempt from the filing requirement?

The task force tabled consideration of this issue until the next meeting.

       p. What is information upon request? If a person has actually spoken to a lawyer, should
       any information provided to that person be subject to the advertising rules? E.g., must a
       lawyer who has spoken to a prospective client who sends a contract to the prospective
       client through the mail mark it "sample" and "do not sign?"



                                                A-35
                                                                                            Appendix D - Page 53
The task force tabled consideration of this issue until the next meeting.

        q. Should the terms "celebrity" and "spokesperson" be defined in the rule on t.v. and
        radio ads?

The task force tabled consideration of this issue until the next meeting.

        r. Should t.v. and radio continue to be treated differently than print?

The task force tabled consideration of this issue until the next meeting.

        s. How should the task force handle computer activities?

               i. Should web pages sponsored by the lawyer or law firm be exempt from filing?

               ii. Should any special requirements be imposed for websites sponsored by a law
firm?

               iii. Should e-mail be treated as direct mail?

               iv. Should real time communications be addressed in the rules (such as chat
rooms)?

               v. Should pop-up ads be addressed by the rules?

               vi. Should spyware be addressed by the rules?

The task force tabled consideration of these issues until the next meeting.

        r. How should lawyer referral services be defined?

The task force tabled consideration of this issue until the next meeting.

        s. What limitations can the bar place on lawyer referral services?

The task force tabled consideration of this issue until the next meeting.

        t. Should lawyers be required to file ads and receive approval from the bar before using
        the ads?

Task force member Wagner asking for guidance on the issue of whether the risk is not worth the
money unless there are really atrocious ads that have run that would have been used. He is very
concerned about any prior approval, unless the board wants to totally prohibit lawyer advertising
on t.v. He added that the rules should require that any lawyer found to have any ad violation,
must get prior approval for a period of years. Task force member Wagner asked if the attorney
has run one bad ad, does that justify prefiling for 600 good ads? Task force member Bain stated
that he agrees with task force member Bogan that harsher sanctions for rule violations would be
better and more meaningful than prior approval. Task force chair Morales asked how the task
force can to get to harsher sanctions rather than prior approval. Task force member Wagner


                                                A-36
                                                                                          Appendix D - Page 54
responded that the issue should be included as a strong part of report and the chair will argue
strongly at the board meeting. Task force member Bales asked the task force to rethink harsher
sanctions - many are lawyers who don’t know any better. The bar instead should strengthen
penalties for repeat offenders. Task force chair Morales suggested that the rules guarantee no
prosecution for lawyers who pre-submit and obtain approval, but others will be subject to
sanctions. Task force member Ebsary stated that he agreed with the proposal, because it gives
the lawyer the option to protect his or her First amendment rights, but if the lawyer wants to be
safe, he or she can pre-submit.

       u. What ads should be required to be filed for review? All ads? If not, which ones?

The task force tabled consideration of this issue until the next meeting.

       v. How should public service announcements be defined? Should they be required to be
       filed for review?

The task force tabled consideration of this issue until the next meeting.

4.     Discussed the future meeting schedule. The next meeting in-person meeting of the Task
Force is scheduled for Thursday, September 9, 2004 from 9:00 a.m. until 4:00 p.m. at the Tampa
Airport Marriott in conjunction with The Florida Bar’s General Meeting.

5.     The meeting was adjourned.




                                                A-37
                                                                                           Appendix D - Page 55
                                  THE FLORIDA BAR
                             ADVERTISING TASK FORCE 2004
                                      MINUTES

                                         August 25, 2004
                                     2:00 p.m. until 4:45 p.m.
                                       Via Conference Call

Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen (15) members attended:

Bain                               Kiser                               O’Keefe
Bales                              Leopold                             Sellers
Bogan                              Lewis                               Willard
Bullard                            Meador
Ebsary                             Morales
Hammond                            Munoz

Guest Cynthia Brown of the Senate Judiciary Committee and staff members Mary Ellen
Bateman, Gary Blankenship, John Anthony Boggs, and Elizabeth Clark Tarbert also attended the
meeting. The committee took the following actions:

1.     Approved the minutes of the July 26, 2004 meeting.

2.      Task force chair Morales reported that he had asked staff to draft a range of possible
options on evaluation of advertisements for committee consideration in September. He also
reported that staff was collecting data on compliance with the attorney advertising rules. He
stated that staff would draft changes to the rules based on decisions and comments by the
committee to date for the September meeting. After the September meeting, he expects to have a
working document as an interim report that can be posted on the website and circulated to the bar
for comment. Finally, he reported on a meeting between President Johnson, Barry Richard and
others in Tallahassee.

3.     Discussed the following issues:

       A. Should communications sent only to other lawyers, family, and prior clients be
       exempt from the advertising rules?

Task force member Lewis stated that a former client may have asked for information when
originally agreeing to be represented by a lawyer, so the bar could take the position that is all
information on request. Task force member Bogan asked if there is a definition of “family” in
the rules. He sees the potential for abuse for attenuated “family” relationships. Staff responded
that there is no definition of family in the rules. Task force chair Morales stated that he did not
think the task force needs to address the worst case scenario. Task force member Lewis stated
his opinion that there should be no solicitation of anyone, including family and prior clients at
all. The task force discussed the possibility of an exemption from the rules for communications
with family members and prior clients except for direct, in-person solicitation and targeted direct



                                               A-38
                                                                                            Appendix D - Page 56
mail solicitations. Task force member Bales stated that he served on a grievance committee as
chair and served as an SCA member, and advertising is not the bar’s biggest problem. The
problem is that lawyers do not return phone calls, they are arrogant, and they are paternalistic.
Lawyers assume that they know what the public thinks of as problems. Lawyers should be able
to talk to family members regarding their legal health. The task force is getting bogged down
with little rules that no one can understand. He has had a past client who had the wrong leg
operated on and insurance people were in the hospital room asking the former client to sign a
release. Task force member Lewis raised a concern about the possibility that an attorney will get
a big book of clients just so he/she can solicit. He suggested that family members and current
clients be exempt from all rules except solicitation; then if the conduct is allowed under the
current solicitation rule, it would be permissible. Task force member Leopold spoke against
regulating communications with family members and former clients. Many contacts with former
clients from his firm are in the nature of newsletters, birthday cards and the like. Former clients
are people who have already given their trust to a particular lawyer. Task force member Bogan
raised the concern of lawyers creating unjustified expectations, testimonials and past results,
which will be permitted if communications to family members and prior clients are exempted
from the rules. Task force member Munoz commented that those communications would still
subject to the general requirement that they cannot be false or misleading. Task force member
Kiser commented that his opinion regarding application of the rules to prior clients depends on
how recent the representation was. Task force member Lewis commented that unethical
attorneys will go to other lawyers and tell them to solicit their own former clients and refer them
to the lawyer for a referral fee. He also suggested using the language “immediate” family
member instead of just “family member.” The task force directed staff to draft language
exempting family members and prior clients from the advertising rules, with task force members
Kiser, Lewis & Bogan dissenting.

       B. Should communications sent only to other lawyers, family, and prior clients be
       exempt from the filing requirement?

The task force determined that the issue was moot in light of its decision regarding application of
all attorney advertising rules.

       C. What is information upon request? If a person has actually spoken to a lawyer,
       should any information provided to that person be subject to the advertising rules? E.g.,
       must a lawyer who has spoken to a prospective client who sends a contract to the
       prospective client through the mail mark it "sample" and "do not sign?"

The task force determined that this issue was determined by its prior decision to exempt
information on request from the attorney advertising rules.

       D. Should the terms "celebrity" and "spokesperson" be defined in the rule on t.v. and
       radio ads?

Task force member Bales commented that the rules should not require an announcer who does
not appear on screen to state the announcer is a spokesperson and nonlawyer. Ethics Counsel
Tarbert stated that an issue has come before the Standing Committee on Advertising on the



                                               A-39
                                                                                           Appendix D - Page 57
common usage of radio personalities to read advertisements, and whether they must make
spoken disclosures that they are not lawyers. The custom of the radio industry is to use radio
personalities to read advertisements on-air. Additionally, for public radio, FCC regulations
require that the advertiser cannot read their information on-air. Should the task force consider
deleting the requirement of a spoken disclosure in cases where it is evident that the person is a
spokesperson and not a lawyer. Task force member Kiser commented that the task force should
consider taking no position, because the change is so recent, then letting the issue work out at the
standing committee level. Task force member Bain stated that the rules should only require a
disclosure where the context is misleading. Task force member Bales stated that the public is
used to having voice-overs by announcers who are not part of the advertising company or
product; the public will not necessarily assume that an announcer who is not seen is a member of
the firm. Task force member Lewis stated that perhaps the only misleading context is where the
spokesperson appears visually in the advertisement and suggested redrafting the rule to address
that alone. Task force member Kiser stated there could be an issue with deception on the voice
alone, not just where the spokesperson’s image is used. Task force chair Morales asked whether
the same issue would be true of print and billboard advertisements, if a firm used a model. Task
force member Bain stated that the real issue is whether the context makes plain that the
spokesperson is not a lawyer. If not, the advertisement must disclose that. Task force member
Meador indicated, if the only concern is public service announcements being spoken by radio
personalities on public television, the task force could address the issue by drafting an exemption
into the rule on public service announcements or the definition of advertising. The task force
directed staff to draft alternatives for its consideration.

        E. Should t.v. and radio continue to be treated differently than print?

The task force consensus was to continue to treat television and radio differently than print.

        F. How should the task force handle computer activities?

               i. Should web pages sponsored by the lawyer or law firm be exempt from filing?

The task force consensus was that web pages sponsored by lawyer or law firm should continue to
be information on request, meaning that under the task force’s proposed rules, they would not be
subject to regulation except the general misconduct rule.

               ii. Should any special requirements be imposed for websites sponsored by a law
firm?

The task force consensus was that the rules should retain the special requirements of the
geographic disclosure and jurisdictional limitations disclosure.

               iii. Should e-mail be treated as direct mail?

The consensus of the task force was to continue to treat e-mail in the same way as direct mail.




                                                A-40
                                                                                            Appendix D - Page 58
               iv. Should real time communications be addressed in the rules (such as chat
rooms)?

Task force member Munoz stated that he raised this issue on the subcommittee, and he believes
that the conduct is most closely parallel to direct, in-person solicitation. Task force member
Ebsary stated that he directs his clients not to talk in chat rooms, and the bar has received no
complaints on this conduct. Task force member Munoz stated that directly addressing the issue
in the rules would provide clear guidance so lawyers do not have to wonder if the conduct is
regulated. Task force chair Morales stated that the issue is already addressed in the direct
solicitation rule. The consensus was that there was no need to address chat rooms specifically in
the rules.

               v. Should pop-up ads be addressed by the rules?

Task force member Hammond stated that pop-ups and banners are covered already by Rule 4-
7.6(d). The consensus of the task force was that there was no need to change the rule.

               vi. Should spyware be addressed by the rules?

Task force member Ebsary stated that he does not know of any lawyers who have used spyware
to advance their legal practice. Task force chair Morales stated that it will likely be the subject
of federal or state regulation. The consensus of the task force was not to address this issue in the
rules.

       G. How should lawyer referral services be defined?

Task force chair Morales noted that task force member Hammond sent out a proposed definition.
Task force member Hammond commented that the current definition has generated confusion
and debate, raising the examples of The Fund and BLSE, so the issue should be examined. Task
force chair Morales stated that lawyers should not be able to generate business from ads that
violate the rules. Task force member Ebsary stated that a related area is that The Florida Bar has
received complaints about lawyer referral services and has requested information from the
lawyer referral service, and those entities are not cooperating. There is a harm and the bar needs
to find a way to enforce the rules. Task force chair Morales stated that under the rules, it is the
lawyer’s responsibility to ensure that the lawyer referral service is acting in compliance with the
rules if the lawyer is taking referrals from the lawyer referral service. Task force member
Hammond stated that the broad definition has thrown a big net that covers organizations that are
not lawyer referral services. As an example, the Fund is only informing the public in a public
education campaign that they should hire a lawyer in real estate cases.

Task force member Sellers joined the conference call.

Task force member Munoz stated that the point is not to allow a loophole to avoid application of
the rules to advertising for attorneys when the attorney is not the one running the ad. Legal
Division Director Boggs stated that he was involved in this rule’s adoption. The bar’s concern
was with any third party group running ads not in compliance with the rules and creating an



                                                A-41
                                                                                             Appendix D - Page 59
uneven playing field. Task force member Morales pointed out that the rules do not say there is
anything wrong with being a lawyer referral service, just that their advertisements must comply
with the advertising rules. Legal Division Director Boggs added that any part of the bar should
be in compliance with rules, whether or not the rules specifically require them to be so; for
example, attorney ads that run in the bar News and Journal must comply with the ad rules under
bar policy, even though the ad rules are not specifically applicable to them. Task force member
Bogan stated that he believes no further clarification of the definition is required. Task force
member Sellers stated that if the task force tries to chisel out exception for one group, it will
create a decision that could be used in the future for a lawyer who can figure out a way around
the rules that fits within same classification as this one. Task force member Hammond stated
that he is not asking for an exception, just asking for clarification about what the bar is trying to
stop. Task force chair Morales stated that the bar is not prohibiting anyone from advertising or
referring cases. The Fund can advertise and refer cases, but the Fund must follow the advertising
rules. If lawyers get cases from nonlawyers who advertise, then the nonlawyers must follow the
ad rules. The task force determined that there was no need to further clarify the definition, with
task force member Hammond dissenting.

       H. What limitations can the bar place on lawyer referral services?

The task force determined that this issue had already been addressed adequately.

       I. What ads should be required to be filed for review? All ads? If not, which ones?

The task force determined that the issue had already been adequately addressed.

       J. How should public service announcements be defined? Should they be required to be
       filed for review?

Ethics counsel Tarbert stated that task force member John Remsen had raised at a Standing
Committee on Advertising meeting the issue of permitting any exempt information to be
published in a public service announcement and still be exempt from the filing requirement. The
issue arises frequently on public radio where an announcer will state that the news or a show is
brought to the public by X law firm, personal injury lawyers since 1970, and the like. The
Standing Committee on Advertising constructs the current rule very strictly. Any public service
announcement that contains any information about the lawyer other than name and city must be
filed. Task force member Munoz stated that he was in favor of the idea. The information is all
permissible content and therefore should not be harmful to the public. Task force members
Bales and Ebsary also spoke in favor of the idea. The task force directed staff to draft language
adding permissible content to the rule on public service announcements, while retaining the
criteria for determining a public service announcement, with task force member Bogan
abstaining because of lack of sufficient information.

       K. Should a distinction be made between sophisticated consumers and the general
       public?




                                                A-42
                                                                                             Appendix D - Page 60
Task force member Sellers commented that the task force would then have to define a
sophisticated consumer, which would be very difficult to implement. Additionally,
unsophisticated consumers might gain access to advertisements aimed at sophisticated
consumers. Task force member Bales agreed that discerning between sophisticated and
unsophisticated is too difficult. Task force member Munoz stated that although difficult,
distinctions could be made between, for example, business people and others. Task force
member Bogan stated that he does not agree with the premise that one is sophisticated just
because one runs a business. Task force chair Morales expressed sympathy with the position of
an exception, but stated that he did not know how to carve out such an exception. Task force
member Bogan stated that he was sympathetic to the plight of some bar members who attended
the June meeting, but does not believe it is an ill that can be cured. The consensus of the task
force was to not create an exception for sophisticated clients.

       L. Should the task force prohibit use of terms such as “practice limited to” as requested
       by BLSE?

Task force member Ebsary stated that such a prohibition would go far beyond the existing rules
and would be subject to challenge. It appears to be just an effort to protect turf. Task force
member Bogan agreed, stating that if the task force recommended this prohibition today,
tomorrow there will be a request to prohibit statements such as “I only handle [practice area].”
Task force member Bain agreed, noting that there are people who practice in areas in which there
is no certification, and they should be able to truthfully state that they limit their practice to that
area. Task force member Sellers agreed, stating that it is permissible to regulate use of the term
“specialize” because it implies something other than normal skills and experience. “Practice
limited to” does not imply anything other than that the attorney only practices in one specific
area of law. The consensus of the task force was to not recommend this suggestion.

       M. Should the task force require that all ads for lawyer referral services explicitly state
       that the lawyer referral service, as requested by the UPL Standing Committee?

The task force consensus was to adopt such a requirement.

       N. Should the task force explicitly prohibit lawyers from accepting cases referred by
       persons/organizations who advertise in a way that would be prohibited if a lawyer used
       the advertising, as suggested by Wayne Thomas?

The task force consensus was that this issue is already addressed by other rules.

4.     Discussed the future meeting schedule. The next meeting of the Task Force will be held
on Thursday, September 9, 2004 from 9:00 a.m. until 4:00 p.m. at the Tampa Airport Marriott in
conjunction with The Florida Bar’s General Meeting.


5.     The meeting was adjourned.




                                                 A-43
                                                                                               Appendix D - Page 61
                                  THE FLORIDA BAR
                             ADVERTISING TASK FORCE 2004
                                      MINUTES

                                       September 10, 2004
                                         9:00 a.m. until
                                       Via Conference Call

Chair Manuel R. Morales, Jr. presided over the meeting. Fifteen (15) members attended:

Bain                                Kiser                               Remsen
Bales                               Lewis                               Sellers
Bullard                             Meador                              Willard
Curtis                              Morales
Ebbets                              Munoz
Ebsary                              O’Keefe

Staff members Mary Ellen Bateman, Gary Blankenship, John Anthony Boggs, and Elizabeth
Clark Tarbert also attended the meeting. The committee took the following actions:

1.     Approved the minutes of the August 25, 2004 meeting.

2.   Heard a report from staff on proposed rules from the Multijurisdictional Practice Special
Committee.

3.   Discussed comments received from bar members since the last meeting. Noted that most
comments seemed to address the proposal to extend the 30 day rule to criminal defense cases.

4.      Discussed other state action on advertising rules.
        A. Heard a report from staff on the order of the Supreme Court of Kentucky replacing
prior review with contemporaneous filing requirement.
        B. Heard a report from staff that the State Bar of New Mexico posted a notice on its
website that the New Mexico Supreme Court has withdrawn rules requiring review of attorney
advertising.
        C. Heard a report from staff that the State Bar of Texas posted a notice on its website
interpreting Texas attorney advertising rules on unjustified expectations.

5.      Heard a report from staff on statistical information regarding compliance with the
advertising rules from years 1991 through 2004.

6.      Discussed the draft rules:
        A. The task force voted against including a definition of advertising in the attorney
advertising rules.
        B. Alternatives for application of the rules to out of state lawyers: The task force voted to
redraft proposed rule 4-7.1(d) to include subdivisions to make the draft rule clearer. Voted to
approve new subdivisions (e) through (j) in Rule 4-7.1 and added commentary at lines 148-150.



                                                A-44
                                                                                             Appendix D - Page 62
Task force member Sellers left the conference call.

         C. Voted to add language “except as provided in Rule 4-7.1(f) through (i) to the
beginning of Rule 4-7.2 before subdivision (a).
         D. Voted to remove “commonly recognized religious symbols” from exempt information
at line 226 after staff repeated a comment made telephonically by a bar member.
         E. Voted to add “written communications” in 4-7.2(b) at lines 174-178 for consistency.
         F. Voted to approve a suggestion by staff that Rule 4-7.2(b)(14) be reorganized as 4-
7.2(b)(2).
         G. Voted not to approve a suggestion by staff re new draft proposed Rule 4-7.2(c)(12)
that would prohibit any third party from paying the costs of a lawyer’s advertising
         H. Voted to approve a suggestion by staff to reorganize Rule 4-7.2(c) to put all content-
based regulations together and move other regulations to the end of the rule.
         I. Voted to approve a suggestion by staff to add to 4-7.2 comment under
“Communication of Fields of Practice” clarifying language regarding certification by other state
bars, having “expertise,” and use of terms such as “concentrate” or “focus on”
         J. Voted to approve alternative one, defining “prior professional relationship” in the
comment to Rule 4-7.4(a), and directing staff to draft additional commentary stating that
attendance at seminars where the lawyer is a speaker by itself does not create a prior professional
relationship, and addressing a lawyer’s contact with charitable and civic groups as a legal
representative versus as a member, stating that contact as a legal representative of the group does
create a prior professional relationship, while contact as a fellow member does not.
         K. Voted to publish three alternatives regarding extension of the 30 day rule in Rule 4-
7.4(b)(1)(A) and comment: one to leave as is, a second to extend the 30 day rule to criminal
matters, and a third to extend the 30 day rule to criminal matters and civil traffic matters.
         L. Voted to approve a suggestion by staff to delete Rule 4-7.4(b)(2)(C) regarding filing
requirement and moving records retention to Rule 4-7.7.
         M. Voted to approve a suggestion by staff to add to comment to Rule 4-7.4 that terms
like “public records” do not comply with the requirement that the source of information be
disclosed in targeted direct mail.
         N. Voted to adopt alternative two regarding use of nonlawyer spokespersons in Rule 4-
7.5(b)(2) and comment, but reversing the language to state that there is a duty to affirmatively
disclose a spokesperson’s status unless it is clear from the context of the advertisement that the
spokesperson is not a lawyer and not a member of the firm. Voted to approve a change in
terminology from “attorney” to “lawyer” for consistency with the rules format.
         O. Voted to approve a suggestion by staff to delete obsolete portion of Rule 4-7.5
comment on definition of “member” of law firm.
         P. Voted to approve a suggestion by staff to delete “and home pages” from Rule 4-7.6(b)
as redundant. Voted to delete subdivisions (b)(1) and (b)(2) from the rule.
         Q. Voted to approve a suggestion by staff to add that electronic direct mail is subject to
Rule 4-7.2 for consistency with other rules in Rule 4-7.6(c)(1). Voted to add to the comment that
pop-ups and banner ads are examples of computer-accessed communications subject to the rule.
         R. Voted to approve a suggestion by staff to delete electronic direct mail from Rule 4-
7.6(d).




                                               A-45
                                                                                           Appendix D - Page 63
        S. Discussed options for review of advertisements in Rule 4-7.7. Voted against adopting
a rule that would not require any review of advertisements. Voted to adopt alternative two, but
with the following changes: directed staff to draft changes that would make advertising opinions
of The Florida Bar binding on The Florida Bar in grievance proceedings; directed staff to delete
the provision that would allow the bar to correct a mistaken opinion at lines 1573-1575; and
directed staff to add commentary about the safe harbor for lawyers who choose to voluntarily
submit their advertisements for pre-approval.
        T. Voted to adopt alternative two for filing exemptions in Rule 4-7.8.
        U. Voted to delete Rule 4-7.9 in its entirety because it is now addressed in proposed Rule
4-7.1.

7.     Directed staff to post an executive summary and the draft rules in legislative format on
the website for member comment and seek publication of information regarding the draft in the
bar News.

8.     Discussed the future meeting schedule. The next meeting of the Task Force is scheduled
for Thursday, January 20, 2005 from 9:00 a.m. until 4:00 p.m. at the Hyatt Regency in Miami in
conjunction with The Florida Bar’s Midyear Meeting.

9.     The meeting was adjourned.




                                              A-46
                                                                                          Appendix D - Page 64
                                 THE FLORIDA BAR
                            ADVERTISING TASK FORCE 2004
                                     MINUTES

                                       November 1, 2004
                                   9:30 a.m. until 12:00 p.m.
                                      Via Conference Call

Chair Manuel R. Morales, Jr. presided over the meeting. Sixteen (16) members attended:

Bain                              Kiser                              O’Keefe
Bales                             Leopold                            Rush
Bogan                             Lewis                              Wagner
Curtis                            Meador                             Willard
Ebbets                            Morales
Ebsary                            Munoz

Staff members Mary Ellen Bateman, John Anthony Boggs, and Elizabeth Clark Tarbert also
attended the meeting. The committee took the following actions:

1.      Task force chair Morales asked the task force members to discuss the request by The
Florida Bar Board of Governors to address current Rule 4-7.2(b)(1)(B) regarding “unjustified
expectations.” Task force member Wagner made a motion that the task force delete the rule
because it is unclear, which was seconded by task force member Bales. Task force members
Bales, Ebsary, Leopold and Lewis spoke in favor of the motion. Task Force member Rush spoke
against the motion stating that the phrase has been defined in a case-by-case basis and the rule
provides a check for advertising abuses. Task force member Bain commented that the rule as
written does not appear to be clear and easy to apply. The task force members voted 8-7 to
delete the phrase “or is otherwise likely to create an unjustified expectation about results the
lawyer can achieve” in proposed rule 4-7.2(c)(1)(G).

Task force member Wagner made a motion to direct staff to draft language prohibiting
guarantees as a separate subdivision in Rule 4-7.2(c)(1), which was seconded by task force
member Lewis. The motion passed, with two dissenting votes.

2.      Task force chair Morales asked the task force members to discuss the request by The
Florida Bar Board of Governors to draft alternatives for the board’s consideration on prior
review of attorney advertisements. Task Force vice-chair Ebbets commented that he gave a
report to the board at its October 2004 meeting, summarizing the task force actions to date, and
providing them with copies of the drafts being published for comment on the board’s website.
He stated that the board greatly appreciated the hard work of the task force. The board engaged
in a lengthy debate regarding the issue of prior review of advertisements. The culmination of the
discussion was a unanimous vote of the board members present to ask the task force to draft a
proposed rule on prior review, understanding that the task force was not recommending such a
rule. Task force chair Morales commented that the board’s request is not to change a task force
recommendation, but to draft and publish alternatives for bar members to comment on. The task



                                              A-47
                                                                                          Appendix D - Page 65
force would then have the opportunity to have input on a rule on prior review, whether or not the
task force recommends such an alternative.

Task force member Wagner spoke against the idea of drafting additional alternatives for the
board’s review. If the board rejects the final recommendations of the task force, the board can
then draft its own alternatives or request the task force to draft additional alternatives. Task
force member Bales also spoke against further drafting, stating that changes to the review
requirements might affect other changes to the proposed rules, which the task force has not yet
had time to consider.

Task force member Munoz joined the conference call.

Task force member Wagner made a motion not to publish any alternatives or provide any
alternatives to the board. The motion was seconded by task force member Bogan.

Task force member Bain stated that, although he tends to agree with the notion of efficiently
addressing all options at one time, he is concerned that changes to the rule on reviewing
advertisements might affect other rules under discussion.

Task force member Munoz spoke against publishing alternatives, stating that the task force
should send a message to the board that the task force has discussed the issue at length and has
dealt with the issue of prior review by recommending against it. The task force should not even
publish for discussion alternatives that members of the task force believe could be
unconstitutional.

Task force member Rush spoke in favor of publishing alternatives to encourage public debate
and discussion on the issue which would not otherwise occur.

Task force member Ebsary spoke against publication, stating that the board should publish on its
own if it wants to consider prior review as an alternative. Comments from members for or
against prior review does not create the kind of record that could sustain a constitutional
challenge.

Task force member Rush proposed an amendment to the motion to publish the alternatives with
qualifying language that the task force is not in favor of the alternatives, but publishes them at
the request of the board. The motion to amend was seconded by task force vice-chair Ebbets.
The motion to amend passed 8-7.

Task force members Bain, Bogan and Willard left the conference call.

Task force member Munoz made a motion, seconded by task force member Rush to publish the
following language together with the alternatives for comment:

       The task force voted to adopt changes to Rule 4-7.7 regarding review of
       advertisements. The task force rejected two additional alternatives proposing
       prior review of advertisements. At the request of The Florida Bar Board of



                                               A-48
                                                                                            Appendix D - Page 66
     Governors and by vote of 8-7, the task force publishes those two additional
     alternatives addressing prior review of advertisements for comments by bar
     members. The task force has not considered the effect the adoption of the two
     additional alternatives might have on other proposed changes to the attorney
     advertising rules.

3.   The meeting was adjourned.




                                           A-49
                                                                                     Appendix D - Page 67
                                  THE FLORIDA BAR
                             ADVERTISING TASK FORCE 2004
                                      MINUTES

                                        January 20, 2005
                                     9:00 a.m. until 4:00 p.m.
                                          Hyatt Regency
                                          Miami, Florida

Chair Manuel R. Morales, Jr. presided over the meeting. Thirteen members attended:

Bain                               Huang                                Sellers
Bales                              Lewis                                Wagner
Bogan                              Meador                               Willard
Curtis                             Morales
Ebbets                             O’Keefe

President Kelly Overstreet Johnson, President-elect Alan B. Bookman, Executive Director John
F. Harkness, Jr., and staff members John Anthony Boggs, Mary Ellen Bateman, and Elizabeth
Clark Tarbert also attended the meeting. The committee took the following actions:

   1.     Approved the minutes of the September 10, 2004 and November 1, 2004
          meetings.

   2.     Heard presentations to the Advertising Task Force 2004 by Florida Bar members
          and other interested persons.

           A. Mr. Peter Aiken stated that he has been a Florida Bar member for 34 years and
   practiced both before and after lawyer advertising. He stated that there is an enormous
   difference between civil and criminal litigation. The criminal defendant does not have a
   choice whether to engage in the litigation – the litigation has been commenced. There is
   also a difference in the stakes involved and the standard of proof. Any attorney who is
   not actively investigating within the first 30 days is not adequately representing the client.
   As an example, he was able to convince a state attorney to drop or reduce charges, agree
   to diversion or drug court in many cases. There is no good logical argument to support
   extending the 30 day rule to criminal cases. Direct mail is the only way young
   practitioners have to generate business, and competition is good for clients. The advice
   of rights that police give to arrested persons is a fraction of the rights that the criminal
   defendant has. In court appearances, often 300 criminal defendants appear, and 250 of
   those will likely be unrepresented. If a public defender is appointed, that person may get
   15-20 seconds of the public defender’s time, because of the volume of cases. Many
   offenses may be enhanced: they can be charged as felonies or have enhanced penalties
   with subsequent offenses. Whether the prospective client hires Mr. Aiken or not, the
   letter he sends provides them with sound legal advice and he provides an initial
   consultation at no charge. The letter is required to be stamped “advertisement” under the
   current rules, and recipients do not have to open the letter. There is therefore no



                                               A-50
                                                                                             Appendix D - Page 68
downside. Task force member Rush was quoted as stating that criminal defendants are
vulnerable. Mr. Aiken agrees they are vulnerable, but they need good timely legal
advice.

        B. Mr. Eiman Sharmin stated that he is a criminal and traffic defense lawyer from
West Palm Beach. He read in the August 15 issue of the News that task force members
questioned whether direct mail letters assist the recipient. The current rules require
lawyers to list their qualifications in the direct. Other media do not. Direct mail gives
the recipient the ability to compare qualifications of the sending lawyers. A criminal
defendant has difficulty choosing a lawyer through the yellow pages or by listening to
radio advertisements. With direct mail, the recipient has the ability to review lawyers’
credentials in the privacy of the person’s own home. Task force member Rush was
quoted as stating that nothing can happen within 30 days that cannot be undone.
However, in DUI cases, an administrative hearing must be requested within 10 days or
the criminal defendant has no right to contest the driver’s license suspension. There is no
remedy if that deadline is missed. Traffic tickets have similar time limitations. The
Supreme Court has stated that speech can be regulated, but not in a way that eliminates
the speech entirely. With traffic tickets, speech would be eliminated if lawyers cannot
advertise within 30 days. It is vital to send letters within 30 days of a traffic ticket’s
receipt so that defendants know their options before they are time barred from using those
options. In contrast, civil plaintiffs have a two year statute of limitations. There is a
segment in the market of criminal defendants of those who do not qualify for the pubic
defender’s office, but also cannot afford to hire a lawyer who has to absorb yellow pages
marketing costs. The proposed regulation would hurt the public, and young attorneys,
and would hurt competition, which improves quality and drives down prices.

         C. President-elect Alan Bookman thanked the task force members for their hard
work. He encouraged task force members to look seriously at requiring the home pages
to be filed for review and comply with substantive advertising regulations. He also asked
that task force members reconsider the definition of lawyer referral services, mentioning
that The Fund’s educational program had been found to fall within the definition, which
he believes do not fall within the definition as commonly understood to mean pay to play.
He pointed out the electronic communication of task force member Hammond, who
proposed an alternative definition.

         D. Mr. Albert Quirantes stated that advertisements provide free information to the
public. Driving and safety schools send direct mail freely. He personally has used direct
mail for 16 years and has received nothing but positive responses from recipients. He has
always submitted his advertisements for approval prior to sending them. Direct mail is
critical in promoting the provision of information to a diverse population. Lawyers send
direct mail advertisements in English, Spanish, Creole, and provide information that
speakers of other languages do not receive from the government. For example, traffic
tickets are printed with information that is only in English. Traffic ticket recipients do
not understand that they have only 10 days to ask for a hearing. Often, ticket recipients
ask for information from the Department of Motor Vehicles. Instead of setting the
hearing to contest the ticket, the DMV gives the person a form to apply for a work



                                           A-51
                                                                                       Appendix D - Page 69
permit. The person does not understand the difference between contesting the ticket and
requesting a hardship license. The forms are available at the DMV are available only in
English. Mr. Quirantes requests formal hearings on behalf of traffic ticket recipients for
free, and sends his letters in English and Spanish.

        E. Mr. Carlos Gonzalez stated that he practices criminal law in Miami and is a
former prosecutor. His family members are day laborers and his father is a convicted
felon. He has seen a difference when a criminal defendant receives a letter within 30
days. He has been able to persuade the state to change its filing decision within 30 days,
for example, no bond decisions and lesser charges. Not receiving information can cause
irreparable damage: being jailed and not released cannot be remedied. State attorneys
take advantage of unrepresented criminal defendants. Many criminal defendants do not
understand that they can afford to hire an attorney and lawyers’ ability to help will be
limited or ended if criminal defendants do not have the ability to receive information
within 30 days. In Dade, fines go up 40 percent if the person does not respond within 30
days, because they are referred to collection.

        F. Mr. Jonathan M. Rowe stated that he practices criminal and traffic defense in
Nassau, St. John and Duval counties. Mr. Rowe stated that many times, video tapes are
made at book-in, and the tapes are kept for only 72 hours. 911 tapes are only kept for a
short period of time, then destroyed. The tapes may be key to the case, and criminal
defendants do not know to request copies. With proper and quick investigation, cases are
often dismissed, reduced, or diverted to a pre-trial intervention program. Additionally,
clients may receive the benefit of a price reduction for cases handled at volume, for
example, in traffic ticket cases. Direct mail is highly reviewable.

Task force member Sellers entered the meeting.

Mr. Rowe has never had anyone complain about his direct mail letters, and many people
have thanked him. Direct mail gives defendants the opportunity to hire a lawyer at a
decent price. Often when he receives calls from defendants located outside his
geographic area, he advises them to wait to receive direct mail letters because the
advertising lawyers will be familiar with the area of practice, the courts, and will provide
representation at a reasonable price. He was able to relocate to another geographic area
in Florida because he could develop a new client base quickly through direct mail.

          G. Mr. Jeffery N. Ivashuk stated that he practices criminal defense and personal
injury in Miami-Dade. He is in favor of the 30 day rule in personal injury cases, because
it is intrusive and distasteful. The Went For It case discusses The Florida Bar’s intensive
study of the invasion of privacy caused by direct mail in personal injury cases, obtaining
input from Florida residents. That study does not exist as to direct mail in criminal cases.
There have been no complaints to the bar, no surveys performed, nor public hearings on
the issue. What must be demonstrated is that harm is real and restrictions will alleviate
those harms. Others today have talked about the benefits of direct mail in criminal and
traffic cases. By contrast, no one could point to any benefit in receiving direct mail in
personal injury cases within 30 days. He hopes that there is no hidden agenda to generate



                                            A-52
                                                                                         Appendix D - Page 70
revenue that is lost by effective ticket defense representation, where tickets are dismissed
or fines reduced. There are serious economic consequences to people who lose their
drivers licenses because they do not know to request a hearing. Records and tapes are not
kept permanently, so evidence is lost. Those who are of low economic status or with
language issues will be disproportionately affected. He has never received a complaint
regarding the direct mail he sends, and he is thanked weekly.

        H. Mr. Charles Barnard stated that he practices criminal defense, primarily DUI
and misdemeanors, in Ft. Lauderdale. Criminal defendants who are in jail particularly
need representation. He includes a lot of information in his direct mail, including step-
by-step instructions on what to do if a person misses an important deadline. If there is a
legitimate reason to miss the deadline, such as being a non-English speaker or being in
custody, Mr. Barnard can prepare an affidavit for the person and often obtain a belated
hearing. Many do not understand that the DUI ticket itself acts as a driver’s license for
10 days. He has been told that he should sell his direct mail letter because it contains so
much helpful information. Evidence can be destroyed, for example, radio transmissions
are taped. In domestic violence cases, defendants often receive a summons rather than
being arrested. The person does not even necessarily realize that he or she must go to
court.

         I. Mr. Eric Weingard stated that he is a criminal defense attorney with an
engineering degree, admitted to the New York and New Jersey bars in addition to
Florida. He sits on a grievance committee. The comment to Rule 4-7.4 states that direct
mail has less potential for abuse and overreaching than direct solicitation. He stated that
he is concerned regarding alleged connections between bail bonds businesses and
attorneys. People who receive direct mail learn that other attorneys are interested in
handling their cases and do not feel compelled to go to a lawyer recommended by a bail
bonds company. Mr. Weingard was a state attorney for 3 years. The first 30 days are
critical to a criminal case. 95% of clients do not claim innocence, but for 100% of those
who do, Mr. Weingard has obtained a dismissal of their cases. If a defendant is wrongly
accused of a crime, that person wants the case investigated within the first 30 days. AT
early stages, it is less expensive for both the individual and the state to dispose of the
case. The defendant is not like a victim of an accident. Although there is emotion when
a person gets arrested, it is different in kind from an accident victim. An accident victim
is injured and can heal over time, while a criminal defendant’s emotions are
embarrassment and shame. A criminal defendant cannot obtain referrals from friends or
family. Direct mail shows that lawyers are interested in the person’s case and can lessen
the person’s embarrassment.

        J. Mr. Michael Faehner stated that he is the president of the Young Lawyers
Division. He does not practice criminal law, but speaks on behalf of the 20,000 young
lawyers of Florida. His only concern is the possible extension of the 30 day rule to
criminal cases. He has spoken to many former prosecutors and public defenders and is
concerned the extension will cause more chaos than fix any specific problem. His former
firm used direct mail and never received a complaint about it. The firm also sent direct
mail in workers compensation cases. An extension of the rule could affect the market



                                            A-53
                                                                                         Appendix D - Page 71
dramatically, changing the cost of legal services. Additionally, the system may become
overburdened with unrepresented criminal defendants, burdening the state attorneys,
public defenders, and judges. The system demands efficiency, fairness and justice. The
direct mail letters Mr. Faehner has seen regarding criminal matters provides more
information than others he has seen in workers compensation and eminent domain.

         K. Mr. Terry Richard stated that he does computer work and marketing for
attorney Charles Barnard. He speaks from the consumer perspective. The yellow pages
directory does not provide qualifications or even areas of practice in many instances.
When Mr. Richard’s wife received a traffic ticket, every direct mail piece she received
provided vital information. The lawyer he works for has an over 100 page book on DUI .
Twelve thousand people in Broward are arrested for DUI. 1.2% of those arrested did not
live in the state. Without direct mail, it would be impossible for those people to hire an
attorney. The direct results of extending the 30 day rule will be to harm young lawyers
who cannot afford traditional advertising, and whoever has the most money to advertise
will get the cases. Price is not always the most important factor in hiring an attorney, and
direct mail provides information about a lawyer’s qualifications. That same information
cannot be obtained from the newspaper, television or radio.

        L. Ms. Katrina Barnard stated that she is not a lawyer, but is a client. She was
arrested for DUI in 2001. She is not a citizen and does not understand the legal system.
She hired a lawyer who did not have time to explain matters to her. She received direct
mail letters that provided a lot of information to her at a time that she needed it. She
made an appointment with a lawyer who would consult with her on Saturday, and that
attorney helped her through the case. In response to a question from task force member
Bogan, Ms. Barnard responded that she received over one hundred direct mail letters.

         M. Mr. Jason Diamond stated that his law firm practices traffic ticket defense.
When a person is pulled over, the officer provides a pamphlet with three options: pay the
ticket and have points assessed against the driver’s license, go to traffic school or go to
court. Many recipients of direct mail have informed Mr. Diamond that they did not know
they had the option of fighting the ticket or hiring a lawyer to go to court for them. If
lawyers are prohibited from sending direct mail within the first 30 days after receiving a
ticket, defendants will not know they can hire a lawyer to represent them in court. Many
criminal matters are handled by notices to appear rather than arrests, and convicted
persons have no idea they have criminal records because they were never arrested.

        N. Mr. Mark Milrot stated that he practices traffic and criminal traffic defense in
Dade and Broward. He stated that proponents of the extension raised the issue of
vulnerability of those arrested. The first 30 days is crucial to investigate and preserve
evidence in a case. No defendant is vulnerable in the sense of an injured person. Many
are not savvy about hiring a lawyer, and direct mail provides an opportunity to find
experienced lawyers and compare qualifications. In direct mail, there is no disclosure of
the type of case on the outside of the letter, as required by bar rules.




                                           A-54
                                                                                        Appendix D - Page 72
3.   President Kelly Overstreet Johnson commended the task force members for their
     work and presented them with certificates of merit.

4.   Discussed written comments by Florida Bar members and other interested
     persons.

5.   Discussed the draft rules.

     A.     Selected alternatives from prior meetings:

            1) Rule 4-7.2(b)(1)(J). Task force member Wagner made a motion to
            strike the language “is exempt from the filing and review requirement
            and,” at lines 111 through 112, because it is redundant and addresses the
            concept of exemption from filing, which properly appears in Rule 4-7.8.
            The motion was seconded by task force member Lewis. Task force
            member Curtis spoke in favor of the motion, stating that the concept
            appears only in 4-7.2(b) and not in 4-7.2(a) or (c) and is properly a
            concept in Rule 4-7.8. Committee members Bales and Bain spoke against
            the motion, stating that the language is redundant, but helpful to bar
            members in providing additional information. The motion failed.

            Task force member Ebbets made a motion to strike proposed subdivision
            (j) and instead insert proposed subdivision (b)(3) that would state “Public
            Service Announcements. A lawyer may be listed as a sponsor of a public
            service, charitable, civic, or community program or event as long as the
            information about the lawyer or law firm is limited to the permissible
            content set forth in subdivision (b)(1) of this rule. The motion was
            seconded and passed.

            Task force member Wagner made a motion to delete the language “in any
            public media” on lines 109-110. The motion was not seconded.

            2) Rule 4-7.4(b)(1)(A) & comment [lines 696-741]. Task force member
            Wagner made a motion, seconded by task force member Bogan to adopt
            alternative one (to leave the rule as is). The motion passed unanimously.

     B.     Considered new issues raised by comments:

            1) Rule 4-7.1(b) and (c). Considered a suggestion by a Florida Bar
            member to modify these provisions to indicate that the rules do not apply
            to websites of out-of-state lawyers. The task force took no action
            regarding this suggestion in light of the task force’s recommendation to
            exempt all websites from the attorney advertising rules.

            2) Rule 4-7.2(b)(1)(M). Considered a suggestion by a Florida Bar
            member that the permissible content of advertisements be amended to



                                       A-55
                                                                                   Appendix D - Page 73
include a photograph of a lawyer or lawyers using as a background “any
location in or in front of the firm’s offices.” The task force took no action
regarding this proposal.

3) Rule 4-7.2(c)(1)(G). Considered a suggestion by a Florida Bar
member to allow advertising past results with the disclaimer that “all cases
are based on their individual merits and therefore past successes cannot
guarantee future results.” The task force took no action regarding this
proposal.

4) Rule 4-7.2(c)(1)(K). Considered a suggestion by a Florida Bar
member to delete the prohibition against using testimonials. Task force
member Huang made a motion to delete the prohibition against using
testimonials. The motion was not seconded.

5) Rule 4-7.2(c)(3). Considered a suggestion by a Florida Bar member to
delete references to the word “manipulative.” Task force member Wagner
made a motion to delete all reference to the word “manipulative” in the
attorney advertising rules because it is incapable of definition, too
subjective, and too difficult to enforce. Task force member Bales
seconded the motion, stating that “manipulative” is like the word “unfair”
that the task force already voted to delete from the rules: the bar cannot
regulate bad taste or dignity and should not have rules unless there are
clear reasons for having them. Task force member Ebbets stated his belief
that the rule was adopted to eliminate advertisements appealing purely to
the emotions. Task force member Lewis commented that there needs to
be some rule to address the issue. Task force member Bogan stated that if
the word “manipulative” is deleted, the bar runs the risk of significantly
lowering the standard for attorney advertising. Task force member Sellers
commented that he agreed with the motion’s proponents, but could not
support the motion in the absence of a viable alternative. The motion
failed, 6-7.

Task force member Curtis left the meeting.

6) Rule 4-7.4(b)(2)(E). Considered a suggestion from a Florida Bar
member that the statement of qualifications be required for individual
lawyers as opposed to aggregated for firms. The task force took no action
regarding this proposal.

7) Rule 4-7.4 comment [lines 751-754]. Considered a suggestion from a
Florida Bar member to use the following standard in explaining the
sender’s source of information: “does the explanation allow the recipient
to locate for him or herself the information that prompted the
communication from the lawyer?” Task force member Bogan made a




                            A-56
                                                                          Appendix D - Page 74
motion to adopt the bar member’s suggestion, which was seconded by task
force member Bales. The motion passed.

8) Rule 4-7.6(b). Considered comments by Florida Bar members and the
Citizens Forum that they object to the proposed exemption of websites
from the attorney advertising rules; considered a suggestion by one Florida
Bar member that the attorney advertising rules, including filing, be applied
to homepages only; considered a suggestion by another Florida Bar
member to deal with the issue of advisory opinions on websites if websites
are exempted from the advertising rules Task force member Wagner
commented that it is illogical to treat websites and yellow pages
differently. Task force member Sellers responded that the difference is
that the yellow pages is delivered to everyone’s home, whereas computers
require active use of a computer, searching for topics that would prompt a
lawyer’s website to be prompted, then choosing to go to that website.
Task force member Sellers made a motion to leave the task force
recommendation as is, with no application of the attorney advertising rules
to websites. The motion was seconded by task force member Lewis. Task
force member Wagner offered an amendment to the motion that websites,
direct mail, and print advertisements be made subject to the same
regulation. Task force member Sellers did not accept the friendly
amendment. The motion passed.

A motion was made, seconded, and passed to direct staff to draft changes
to Rule 4-7.7 that The Florida Bar will not review information on request,
because the attorney advertising rules are not applicable.

9) Rule 4-7.7. Considered a suggestion by a Florida Bar member that the
rules require referral to Lawyer Regulation of all lawyers whose
advertisements do not comply with the rules if the advertisement is being
run. Task force member Bales and Lewis spoke against the concept,
stating that it would remove bar members’ incentive to file advertisements
at all. The task force took no action regarding this proposal.

10) Rule 4-7.10. Considered a suggestion by a Florida Bar member that
there be a requirement that sole proprietors must be listed in ads as such
rather than as a firm. The task force took no action regarding this
proposal.

11) Rule 4-7.10. Considered a suggestion by a Florida Bar member that
there be a prohibition against the use of a trade name unless the full
name(s) of all lawyer/owner(s) are listed in the ad. The task force took no
action regarding this proposal.




                            A-57
                                                                        Appendix D - Page 75
     12) Considered a suggestion by a Florida Bar member that lawyers should
     be required to show proof of malpractice coverage in order to advertise.
     The task force took no action regarding this proposal.

     13) Considered a suggestion by a Florida Bar member that a disclosure
     should be required that cases may be handled by a subcontractor. The task
     force took no action regarding this proposal.

     14) Considered a suggestion by a marketing consultant that Florida Bar
     members provide an educational component in their advertising. The task
     force took no action regarding this proposal.

C.   Reconsidered rules drafted by task force at request of commentors:

     1) Rule 4-7.2(a)(2). Considered an objection of 2 Florida Bar members to
     proposal to delete the requirement that appropriate qualifying language
     appear with a local telephone number where the lawyer has no bona fide
     office at that location. The task force took no action regarding this
     objection.

     2) Rule 4-7.2(b)(5). Considered a suggestion by a Florida Bar member to
     reconsider deleting prohibition against advertising for cases in areas in
     which the lawyer does not currently practice. The task force took no
     action regarding this suggestion.

     3) Rule 4-7.2(c)(8). Considered a suggestion by several Florida Bar
     members to reconsider deleting the requirement that intent to refer cases to
     another lawyer be disclosed. The task force took no action regarding this
     suggestion.

     4) Rule 4-7.2(c)(10). Considered a suggestion by Lawyer Regulation to
     change “clearly legible” to 10 point contrasting font or the like. The task
     force took no action regarding this suggestion.

     5) Rule 4-7.4 comment [lines 673-693]. Considered an objection from a
     Florida Bar member that the definition of “prior professional relationship”
     is too narrow. Task force member Wagner made a motion to strike the
     definition of “prior professional relationship” in the comment and change
     “prior professional relationship” to “prior lawyer-client relationship” in
     the rule. The motion was not seconded. The task force took no further
     action regarding this rule.

     6) Rule 4-7.5. Considered a suggestion by a Florida Bar member that The
     Florida Bar do something about the proliferation of television advertising.
     The task force took no action regarding this suggestion.




                                 A-58
                                                                              Appendix D - Page 76
              7) Rule 4-7.5(b)(1)(B). Considered an objection from a Florida Bar
              member to deleting requirement that use of a nonlawyer spokesperson be
              affirmatively disclosed in the ad. The task force took no action regarding
              this suggestion.

              8) Rule 4-7.7. Considered the objection of two Florida Bar members to
              prior review of advertisements drafted at the request of the board of
              governors. The task force took no action, letting its prior recommendation
              stand.

5. The chair opened the floor for discussion of other items at the request of task force
members. Task force member Wagner made a motion to adopt his proposal on page 167e
of the agenda backup that a lawyer cannot provide information to anyone, including
prospective, current or former clients, that involves dishonesty, fraud, deceit, or
misrepresentation. The motion was not seconded.

6. Task force member Wagner made a motion that the words “at Florida residents” be
changed to “involving Florida legal matters” in Rule 4-7.1(c)(2). The motion was
seconded and passed, subject to approval by the Unlicensed Practice of Law Director. If
the Unlicensed Practice of Law Director saw problems with the proposed change, the
committee directed staff to leave the language as previously approved.

7. Task force member Wagner made a motion to add the language “the lawyer’s own”
before “foreign language ability” in Rule 4-7.2(b)(1)(E), which was seconded by Task
force member Ebbets. Task force member Bain commented that the proposal would keep
lawyers from providing useful information to prospective clients: that someone at the
firm has foreign language ability. The motion failed.

8. Task force member Wagner made a motion to strike (E) from 4-7.4(b)(2), deleting the
requirement that sample contracts enclosed with direct mail letters be marked
“SAMPLE” and “Do not sign.” The motion was not seconded.

9. Task force member Wagner made a motion to require that direct mail be marked
“Lawyer Advertisement” as opposed to “advertisement” in Rule 4-7.4(b)(2)(B). The
motion was not seconded.

10. Task force member Wagner made a motion to delete the language “recognizable to
the public” in Rule 4-7.5(b)(1)(B). The motion was seconded by Task force member
Sellers. The motion failed.

Task force member Bales left the meeting.

11. Task force member Wagner made a motion to strike “states” and insert “begins with”
before the language “legal advertisement” and to place the words “legal advertisement”
in all capital letters in Rule 4-7.6(c)(3). Task force member Lewis seconded the motion.
The motion passed.



                                            A-59
                                                                                     Appendix D - Page 77
12. Task force member Wagner made a motion to limit information about the lawyer in
public service announcements to name and city as in the current rule in Rule 4-7.8(b).
The motion was not seconded.

Task force member Curtis re-entered the meeting.

13. Task force member Sellers made a motion to make the titles to subdivisions (a), (b)
and (c) in Rule 4-7.2 consistent, by changing “information” to “content of advertisements
and unsolicited written communications” in subdivision (a) and by adding “and
unsolicited written communications” to the end of the title in subdivision (c). The motion
was seconded and passed.

14. Task force member Bogan made a motion to add “Prohibitions and” to the beginning
of the title of Rule 4-7.2(c). The motion was seconded and passed.

15. Task force chair Manuel R. Morales, Jr. thanked the members of the task force for
their hard work.

16. The meeting was adjourned.




                                          A-60
                                                                                      Appendix D - Page 78
                   APPENDIX B

APRIL 2004 LETTER TO CHAIRS OF BAR COMMITTEES AND
                      SECTIONS

 AND PRESIDENTS OF VOLUNTARY BAR ASSOCIATIONS




                                                Appendix D - Page 79
                                          April 27, 2004

[Title] [Name of Section/Committee Chair or Voluntary Bar President]
[Address of Section/Committee Chair or Voluntary Bar President]

Re:    Request for Comments on Attorney Advertising Rules

Dear [Title] [Last name of Section/Committee Chair or Voluntary Bar President]:

The Advertising Task Force 2004 requests your assistance and comments on the Rules
Regulating The Florida Bar addressing attorney advertising, Rules 4-7.1 through 4-7.11.

The task force has been charged with reviewing the attorney advertising rules and
recommending changes to the rules if deemed necessary, including any changes to clarify
the meaning of the rules and provide notice to Florida Bar members of the rules=
requirements. Included within this charge is an analysis of the advertising filing and
review requirement, including consideration of mandatory review prior to dissemination
of advertisements. The task force is expected to make a final report to The Florida Bar
Board of Governors in year 2004-05.

The task force is interested in receiving comments from interested persons on the task
force=s charge. The task force is particularly interested in hearing any suggestions or
proposals for improving the existing rules. The task force has not drafted any proposed
changes to the rules at this time. As the task force examines the rules, further information
will be posted on the task force=s work on the bar=s website at www.flabar.org, under
organization, committees, special.

The task force welcomes comments from any group, organization or individual. Please
disseminate this information to your members so that they may comment, whether or not
you decide to respond as an organization. The task force strongly suggests that interested
persons contact Elizabeth Clark Tarbert, Ethics Counsel, at the address above to indicate
their intent to address the committee so that sufficient time to hear all comments will be
ensured. The task force urges interested persons also to provide written comments. The
task force will meet to hear from interested persons and review any written comments at
its meeting at 10 a.m. on Thursday, June 24, 2004 at the Boca Raton Resort & Club in
conjunction with the bar=s Annual Meeting. So that the committee members will have
adequate time to review the comments prior to the meeting, any written comments must
be received no later than May 28, 2004. Thank you for your assistance with the task
force=s work.

Sincerely,



Manuel R. Morales, Jr., Chair




                                            B-1
                                                                                        Appendix D - Page 80
                APPENDIX C

SUMMARY OF COMMENTS RECEIVED FOR JUNE 2004
               MEETING




                                             Appendix D - Page 81
                        ADVERTISING TASK FORCE 2004
                             Summary of Comments
                                 June 3, 2004

NAME                 ORGANIZATION   COMMENTS
                                    Ban Attorney Advertising
Leonard Frishman     TFB member     All attorney advertising should be banned
Norman S. Cannella   TFB member     Attorney advertising should never have been
                                    allowed
James H. Carroll     TFB member     All attorney advertising should be banned or at
                                    least limited to yellow pages only
Patricia S. Sechan   TFB member     attorney advertising should be banned,
                                    especially t.v.
H. Clifford Lee      TFB member     Good lawyers do not need to advertise; no
                                    public service is done by ads
Gregory M. Wagner    TFB member     Advertising is demeaning to the profession.
                                    TFB should ban t.v., radio, billboard and
                                    newspaper ads, should ban trade names, should
                                    limit yellow pages ads to business card size,
                                    prohibit direct mail in criminal cases, and
                                    prohibit lawyers from advertising in judicial
                                    circuits where they have no office.
                                    Ad Rules Should Be Stricter
Stephen C. Booth     TFB member     Ads should be regulated as much as possible
Michael H. Lambert   TFB member     Attorney advertising is demeaning and bar rules
                                    should be more restrictive
William H. Walker    TFB member     Advertising contributes to the public’s poor
                                    perception of lawyers, especially t.v. ads. TFB
                                    should regulate advertising as far as is
                                    constitutionally permissible.
                                     Ad Rules Should Stay the Same
William H. Harrell   TFB member     The existing rules should not be changed
Franklin Prince      TFB member     Existing ad rules should not be changed
Robert E. Gordon     TFB member     Lawyer ads help lower socio-economic groups
                                    find lawyers; existing rules are adequate, but
                                    enforcement is inadequate
                                    Specific Rules Changes Suggestions
Robert Stanton       TFB member     There is loophole in ad rules that permits
                                    lawyers who are guest speakers at seminars to
                                    not comply with rules in advertising for the
                                    seminar



                                    C-1
                                                                                Appendix D - Page 82
Wayne L. Thomas      UPL Comm             Attorneys should not be able to accept referrals
                                          from nonlawyers that arose through improper
                                          ads or solicitation
Donald A. Wich       UPL Comm             Lawyer referral services should be required to
                                          state that they are referral services
Donnie Murrell       TFB member           1. Lawyers should not be able to advertise
                                          “combined” experience 2. Lawyers should not
                                          be able to advertise “former prosecutor, because
                                          it implies improper influence
Gregory M. Wagner    TFB member           Advertising is demeaning to the profession.
                                          TFB should ban t.v., radio, billboard and
                                          newspaper ads, should ban trade names, should
                                          limit yellow pages ads to business card size,
                                          prohibit direct mail in criminal cases, and
                                          prohibit lawyers from advertising in judicial
                                          circuits where they have no office.
Jeffrey M. Cohen     BLSE                 Attorneys should be prohibited from using
                                          terms “practice limited to” a specific area unless
                                          the attorney is board certified in that area
                                          Other
Mr./Ms. Blackmon     works for attorney   TFB should survey the public on the issue
Arthur N. Eggers     TFB member           TFB members should be surveyed on ad rules;
                                          in criminal arena, lawyers are violating rules
Michael G. Bass      TFB member           TFB enforcement of rules is inadequate
Bradley R. Stark     TFB member           House Bill 1357 on attorney advertising is bad
Phillip Buhler       Pres., Jax Federal   Declines to comment as an org., but has
                     Bar                  encouraged individual members of the
                                          Jacksonville Federal Bar to provide comments.
Karen R. Wasson      TFB member           House Bill 1357 to restrict attorney advertising
                                          under the guise of reducing frivolous lawsuits is
                                          irresponsible and without substance
Frank J. Benasutti   TFB member           Provides his qualifications
Carl Patterson       Advertising          Existing advertising rules are clear, but
                     Grievance Comm       attorneys fail to follow. Attorneys who violate
                     Public Member        rules in yellow pages ads twice in 3 year period
                                          should be banned from advertising in yellow
                                          pages for 2 years. Attorneys with 2 ad
                                          violations within 5 years should be banned from
                                          advertising for 2 years. There should be an
                                          automatic fee for every advertising case in
                                          which probable cause is found.




                                          C-2
                                                                                      Appendix D - Page 83
                   APPENDIX D

OCTOBER 2004 LETTER ON INTERIM REPORT TO CHAIRS OF
 BAR COMMITTEES AND SECTIONS AND PRESIDENTS OF
           VOLUNTARY BAR ASSOCIATIONS




                                                Appendix D - Page 84
                                         October 1, 2004

[Title] [Name of Section/Committee Chair or Voluntary Bar President]
[Address of Section/Committee Chair or Voluntary Bar President]

Re:    Request for Comments on Attorney Advertising Rules

Dear [Title] [Last name of Section/Committee Chair or Voluntary Bar President]:

The Advertising Task Force 2004 requests your comments on the attorney advertising
rules, 4-7.1 through 4-7.11, Rules Regulating The Florida Bar. We have been charged
with recommending changes to clarify the meaning of these rules and provide notice to
Florida Bar members of the rules= requirements. We will make a final report to The
Florida Bar Board of Governors in the spring of 2005.

Enclosed is an executive summary of the draft changes to the attorney advertising rules.
The full text of the draft is posted in legislative format on the bar=s website at
www.flabar.org under Organization, Committees, Special, Advertising Task Force. The
task force is seeking comments from interested persons before the it makes final
recommendations to the board of governors.

We welcome comments from any group, organization or individual. Please disseminate
this information to your members so that they may comment, whether or not you decide
to respond as an organization. The task force requests that interested persons provide
written comments to Elizabeth Clark Tarbert, Ethics Counsel at the address above or by
e-mail to eto@flabar.org no later than December 31, 2004. The task force strongly
suggests that persons interested in addressing the task force in person contact Ms. Tarbert
to indicate their intent so that sufficient time can be scheduled. We will meet for this
purpose at 9:00 a.m. on Thursday, January 20, 2005 at the Hyatt Regency in Miami in
conjunction with the bar=s Midyear Meeting. Thank you for your assistance with our
work.

Sincerely,



Manuel R. Morales, Jr., Chair




                                            D-1
                                                                                       Appendix D - Page 85
             APPENDIX E

SUMMARY OF COMMENTS ON INTERIM REPORT




                                        Appendix D - Page 86
                             ADVERTISING TASK FORCE 2004
                                  Summary of Comments
                                     January 4, 2005

RULE               COMMENTS                           NAME                       ORGANI-
                                                                                 ZATION
4-7.1(b) & (c)     modify proposal to indicate        Timothy P. Chinaris        TFB member
                   that the rules do not apply to                                & former
                   websites of oos lawyers                                       ethics counsel
4-7.1(h)           supports change                    Timothy P. Chinaris        TFB member
                                                                                 & former
                                                                                 ethics counsel
4-7.2(a)(2)        reconsider deleting                Kelly Overstreet Johnson   TFB President
                   requirement of qualifying
                   language when no bona fide
                   office exists with advertised
                   local phone #
                   opposes change b/c clients         Timothy P. Chinaris        TFB member
                   have legitimate interest in                                   & former
                   knowing whether lawyer has                                    ethics counsel
                   local office
4-7.2(b)(1)(J)     supports change re public          Timothy P. Chinaris        TFB member
Alt. One           service announcements                                         & former
                                                                                 ethics counsel
4-7.2(b)(1)(M)     supports change and suggests      Timothy P. Chinaris         TFB member
Alt. One           adding as permissible content                                 & former
                   the lawyer in front of “any                                   ethics counsel
                   location in or in front of the
                   firm’s offices”
4-7.2(b)(5)        reconsider deleting prohibition Kelly Overstreet Johnson      TFB President
[current rule #]   v. advertising for cases in areas
                   not currently practicing
4-7.2(c)(1)        supports deleting “unfair” as     Timothy P. Chinaris         TFB member
                   too subjective                                                & former
                                                                                 ethics counsel
4-7.2(c)(1)(G)     supports deleting “unjustified     Timothy P. Chinaris        TFB member
                   expectations” but suggests that                               & former
                   ban on past results be modified                               ethics counsel
                   to be permitted with a
                   disclaimer
4-7.2(c)(1)(K)     suggests deleting prohibition      Timothy P. Chinaris        TFB member
                   on testimonials                                               & former
                                                                                 ethics counsel
4-7.2(c)(3)        suggests deleting references to    Timothy P. Chinaris        TFB member
                   “manipulative” on due process                                 & former
                   concerns                                                      ethics counsel


                                                E-1
                                                                                          Appendix D - Page 87
4-7.2(c)(8)        reconsider deleting disclosure     Kelly Overstreet Johnson   TFB President
[current rule #]   requirement on intent to refer
                   cases to another lawyer
                   opposes deleting prohibition of    Andrew Needle              TFB member
                   intent to refer cases to another                              and former
                   lawyer                                                        board member
                   opposes deleting prohibition of    Jack Scarola               TFB member
                   intent to refer cases to another
                   lawyer
                   supports deleting prohibition of   Timothy P. Chinaris        TFB member
                   intent to refer cases                                         & former
                                                                                 ethics counsel
4-7.2(c)(10)       “clearly legible” may be           Ken Marvin                 Director,
                   unenforceable; consider 10                                    Lawyer
                   point contrasting font instead                                Regulation
4-7.3(b)           supports deleting hiring           Timothy P. Chinaris        TFB member
                   disclosure                                                    & former
                                                                                 ethics counsel
4-7.4(b)(1)(A)     supports extending 30 day rule Thomas E.Cazel                 TFB member
[30 day rule]      to criminal cases
                   Ditto                          Richard D. Kibbey              TFB member
                   Ditto                              William Pontrello          TFB member
                   Ditto                              Paul D. Sullivan           TFB member
                   Ditto                              Citizens Forum             Board-
                                                                                 appointed
                                                                                 committee
                   suggests extending 30 day rule     Charles Scott              TFB member
                   to family law cases
                   Ditto                              Citizens Forum             Board-
                                                                                 appointed
                                                                                 committee
                   opposes extending 30 day rule      Peter D. Aiken             TFB member
                   to criminal cases
                   Ditto                              Jeffrey D. Arrowood        TFB member
                   Ditto                              Tracy S. Carlin            TFB member
                   Ditto                              Timothy P. Chinaris        TFB member
                                                                                 & former
                                                                                 ethics counsel
                   Ditto                              Gail Conolly               TFB member
                   Ditto                              Mark C. De Sisto           TFB member
                   Ditto                              Dario D. Diaz              TFB member



                                                E-2
                                                                                          Appendix D - Page 88
Ditto         Robert D. Eckard       TFB member
Ditto         Robert E. Eddington    TFB member
Ditto         Michael Faehner        President,
                                     Young
                                     Lawyers
                                     Division
Ditto         Charles D. Fantl       TFB member
Ditto         H. Scott Fingerhut     Miami
                                     Chapter,
                                     Florida
                                     Association of
                                     Criminal
                                     Defense
                                     Lawyers
Ditto         Lloyd H. Golburgh      TFB member
Ditto         Harvey Greenberg       TFB member
Ditto         Randell Hafner         TFB member
Ditto         J. Larry Hart          TFB member
Ditto         J. Kevin Hayslett      TFB member
Ditto         Rebecca M. Hodge       TFB member
Ditto         Richard E. Hornsby     TFB member
Ditto         Kendall L. Horween     TFB member
Ditto         Brenda Hyre            unknown
Ditto         Greg Johnson           TFB member
Ditto         Joseph R. Johnson      TFB member
Ditto         Jonathan Kasen/Scott   TFB members
              Levine
Ditto         Tom Kurrus             President,
                                     Florida
                                     Association of
                                     Criminal
                                     Defense
                                     Lawyers
Ditto         Louis N. Larsen        TFB member
Ditto         Paul A. Meissner       TFB member
Ditto         Scott D. Miller        TFB member
Ditto         Mark B. Milrot         TFB member



        E-3
                                               Appendix D - Page 89
                 Ditto                              Christopher J. O’Toole    TFB member
                 Ditto                              Parks & Braxton, P.A.     TFB members
                 Ditto                              John H. Power             TFB member
                 Ditto                              Albert M.                 TFB members
                                                    Quirantes/Carlos Pelayo
                                                    Gonzalez
                 Ditto                              Cary F. Rada              TFB member
                 Ditto                              Frank Russo               TFB member
                 Ditto                              Charles D. Scott          TFB member
                 Ditto                              Eiman Sharmin             TFB member
                 Ditto                              Robert S. Sombathy        TFB member
                 Ditto                              W. Grey Tesh              TFB member
                 Ditto                              Thomas G. Tripp           TFB member
                 Ditto                              Eric H. Weingard          TFB member
                 opposes extending 30 day rule      Timothy P. Chinaris       TFB member
                 to civil traffic cases                                       & former
                                                                              ethics counsel
                 Ditto                              Jason A. Diamond          TFB member
                 Ditto                              Harvey Greenberg          TFB member
                 Ditto                              Mark B. Milrot            TFB member
                 Ditto                              Albert M.                 TFB members
                                                    Quirantes/Carlos Pelayo
                                                    Gonzalez
                 Ditto                              Ronald S. Schneider       TFB member
4-7.4(b)(1)(E)   supports deleting word             Timothy P. Chinaris       TFB member
                 “unfair”                                                     & former
                                                                              ethics counsel
4-7.4(b)(2)(E)   qualifications should be           Greg Chumbley             TFB member
                 individually listed for each
                 attorney, not aggregated for
                 law firm
4-7.4            opposes definition of prior        Timothy P. Chinaris       TFB member
comment, l.      professional relationship as too                             & former
673-693          narrow                                                       ethics counsel




                                              E-4
                                                                                       Appendix D - Page 90
4-7.4            opposes change stating that        Timothy P. Chinaris        TFB member
comment, l.      “public records” or “court                                    & former
751-754          records” are insufficient, which                              ethics counsel
                 in some cases may be. Should
                 instead state standard is “does
                 the explanation allow the
                 recipient to locate for himself
                 or herself the information that
                 prompted the communication
                 from the lawyer?”
4-7.5(b)(1)(B)   Supports change that allows        Timothy P. Chinaris        TFB member
                 disclosures to be oral or                                     & former
                 written. Opposes change                                       ethics counsel
                 deleting requirement of
                 disclosure in cases where it is
                 clear from context that
                 nonlawyer is spokesperson
4-7.5            TFB should stop the                Norman S. Pallot           TFB member
                 proliferation of t.v. ads
4-7.6(b)         reconsider deleting                Kelly Overstreet Johnson   TFB President
                 requirement that websites
                 disclose jurisdictions where
                 licensed and bona fide offices
                 consider requiring that home       Alan B. Bookman            TFB President-
                 pages of websites be filed for                                elect
                 review and follow ad rules, but
                 remainder of website be
                 exempt from rules
                 advertising rules should apply     Citizens Forum             Board-
                 to websites                                                   appointed
                                                                               committee
4-7.6/4-7.7      Address issue of whether staff     Timothy P. Chinaris        TFB member
                 will provide an advisory                                      & former
                 opinion on website compliance                                 ethics counsel
4-7.7            consider adding requirement        Kelly Overstreet Johnson   TFB President
                 that all lawyers whose ads do
                 not comply will be referred to
                 lawyer regulation
                 opposes prior review               Timothy P. Chinaris        TFB member
                                                                               & former
                                                                               ethics counsel
                 opposes prior review               J. Tuthill                 TFB member
                 opposes prior review               Matt Weinstein             TFB member




                                             E-5
                                                                                        Appendix D - Page 91
4-7.7(f) &   supports change that TFB           Timothy P. Chinaris    TFB member
comment      opinion is binding                                        & former
                                                                       ethics counsel
4-7.10       require that sole proprietors be   Greg Chumbley          TFB member
             listed as such rather than firms
             require that fictitious names be   Greg Chumbley          TFB member
             banned unless full name of
             attorney(s) is made in the ad
None         consider adding requirement        Michael P. Falkowski   TRB member
             that lawyers show proof of
             malpractice coverage if they
             advertise
None         require disclaimer on all ads      Greg Chumbley          TFB member
             that case may be handled by
             subcontractor
None         Florida lawyers should educate     Jim Fortson            marketing
             consumers more in their ads                               consultant
None         Discipline for ad violations       Citizens Forum         Board-
             should be swift and severe                                appointed
                                                                       committee
None         ad regulations should be           Citizens Forum         Board-
             simplified                                                appointed
                                                                       committee
None         consider spot audits instead of    Citizens Forum         Board-
             a filing requirement                                      appointed
                                                                       committee
None         consider adding questions on       Citizens Forum         Board-
             attorney advertising regulation                           appointed
             to the bar exam                                           committee
None         consider initiating discussion     Citizens Forum         Board-
             with other professions such as                            appointed
             accounting regarding                                      committee
             professionalism in advertising
None         consider a certificate of          Citizens Forum         Board-
             compliance instead of filing                              appointed
             requirement                                               committee




                                          E-6
                                                                                Appendix D - Page 92
             APPENDIX F

     ADVERTISING TASK FORCE 2004
RECOMMENDATIONS IN LEGISLATIVE FORMAT




                                        Appendix D - Page 93
4-7. INFORMATION ABOUT LEGAL SERVICES


RULE 4-7.1 GENERAL


       (a) Permissible Forms of Advertising. Subject to all the requirements set forth
in this subchapter 4-7, including the filing requirements of rule 4-7.7, a lawyer may
advertise services through public media, including but not limited to: print media, such
as a telephone directory, legal directory, newspaper or other periodical; outdoor
advertising, such as billboards and other signs; radio, television, and computer-accessed
communications; recorded messages the public may access by dialing a telephone
number; and written communication in accordance with rule 4-7.4.


       (b) Advertisements Disseminated in Florida. Subchapter 4-7 shall apply to
lawyers admitted to practice law in Florida who solicit or advertise for legal employment
in Florida or who target solicitations or advertisements for legal employment at Florida
residents.


       (c) Advertisements by Out of State Lawyers. Subchapter 4-7 shall apply to
lawyers admitted to practice law in jurisdictions other than Florida:
               (1) who have established a regular and/or permanent presence in Florida
for the practice of law as authorized by other law; and
               (2) who solicit or advertise for legal employment in Florida or who target
solicitations or advertisements for legal employment at Florida residents.


   (bd) Advertisements Not Disseminated in Florida. These rulesSubchapter 4-7 shall
not apply to any advertisement broadcast or disseminated in another jurisdiction in which
the advertising lawyer is admitted if such advertisement complies with the rules
governing lawyer advertising in that jurisdiction and is not intended for broadcast or
dissemination within the state of Florida.




                                             F-1
                                                                                         Appendix D - Page 94
           (e) Communications Between Lawyers. Subchapter 4-7 shall not apply to
communications between lawyers.


           (f) Communications With Family Members. Subchapter 4-7 shall not apply to
communications between a lawyer and that lawyer’s own family members.


           (g) Communications With Current and Former Clients. Subchapter 4-7 shall
not apply to communications between a lawyer and that lawyer’s own current and former
clients.


           (h) Communications At a Prospective Client’s Request. Subchapter 4-7 shall
not apply to communications between a lawyer and a prospective client if made at the
request of that prospective client.


                  (i) Application of General Misconduct Rule. The general rule
prohibiting a lawyer from engaging in conduct involving dishonesty, deceit or
misrepresentation applies to all communications by a lawyer, whether or not subchapter
4-7 applies to that communication.




Comment


           To assist the public in obtaining legal services, lawyers should be allowed to
make known their services not only through reputation but also through organized
information campaigns in the form of advertising. The public's need to know about legal
services can be fulfilled in part through advertising that provides the public with useful,
factual information about legal rights and needs and the availability and terms of legal
services from a particular lawyer or law firm. This need is particularly acute in the case
of persons of moderate means who have not made extensive use of legal services.
Nevertheless, certain types of advertising by lawyers create the risk of practices that are
misleading or overreaching and can create unwarranted expectations by persons untrained



                                               F-2
                                                                                            Appendix D - Page 95
in the law. Such advertising can also adversely affect the public's confidence and trust in
our judicial system.


       In order to balance the public's need for useful information, the state's need to
ensure a system by which justice will be administered fairly and properly, as well as the
state's need to regulate and monitor the advertising practices of lawyers, and a lawyer's
right to advertise the availability of the lawyer's services to the public, these rules permit
public dissemination of information concerning a lawyer's name or firm name, address,
and telephone number; the kinds of services the lawyer will undertake; the basis on which
the lawyer's fees are determined, including prices for specific services and payment and
credit arrangements; a lawyer's foreign language ability; names of references and, with
their consent, names of clients regularly represented; and other factual information that
might invite the attention of those seeking legal assistance.


       Regardless of medium, a lawyer's advertisement should provide only useful,
factual information presented in a nonsensational manner. Advertisements utilizing
slogans or jingles, oversized electrical and neon signs, or sound trucks fail to meet these
standards and diminish public confidence in the legal system.


       These rules do not prohibit communications authorized by law, such as notice to
members of a class in class action litigation.


       These rules apply to advertisements and written communications directed at
prospective clients and concerning a lawyer's or law firm's availability to provide legal
services. These rules do not apply to communications between lawyers, including
brochures used for recruitment purposescommunications between lawyers and their own
family members, communications between lawyers and their own current and former
clients, or communications with a prospective client at that prospective client’s request.




                                              F-3
                                                                                           Appendix D - Page 96
       4-7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES


       The following shall apply to any communication conveying information about a
lawyer’s or a law firm’s services except as provided in subdivisions (e) through (h) of
rule 4-7.1:


       (a) Required InformationContent of Advertisements and Unsolicited Written
Communications.


               (1) Name of Lawyer or Lawyer Referral Service. All advertisements and
       written communications pursuant to these rules shall include the name of at least
       1 lawyer or the lawyer referral service responsible for their content.


               (2) Location of Practice. All advertisements and written communications
       provided for under these rules shall disclose, by city or town, 1 or more bona fide
       office locations of the lawyer or lawyers who will actually perform the services
       advertised. If the office location is outside a city or town, the county in which the
       office is located must be disclosed. A lawyer referral service shall disclose the
       geographic area in which the lawyer practices when a referral is made. 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. If an advertisement or written communication lists a telephone number in
       connection with a specified geographic area other than an area containing a bona
       fide office, appropriate qualifying language must appear in the advertisement.


     (b) Prohibited Statements and Information. Permissible Content of
Advertisements and Unsolicited Written Communications. If the content of an
advertisement in any public media or unsolicited written communication is limited to the
following information, the advertisement or unsolicited written communication is exempt




                                            F-4
                                                                                           Appendix D - Page 97
from the filing and review requirement and, if true, shall be presumed not to be
misleading or deceptive:


                (1) Lawyers and Law Firms:


                      (A) subject to the requirements of this rule and rule 4-7.9, the name
of the lawyer or law firm, 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, and a
designation such as “attorney” or “law firm”;


                      (B) date of admission to The Florida Bar and any other bars, current
membership or positions held in The Florida Bar, its sections or committees, former
membership or positions held in The Florida Bar, its sections or committees, together
with dates of membership, former positions of employment held in the legal profession,
together with dates the positions were held, years of experience practicing law, number of
lawyers in the advertising law firm, and a listing of federal courts and jurisdictions other
than Florida where the lawyer is licensed to practice;


                      (C) technical and professional licenses granted by the state or other
recognized licensing authorities and educational degrees received, including dates and
institutions;


                      (D) military service, including branch and dates of service;


                      (E) foreign language ability;


                      (F) fields of law in which the lawyer practices, including official
certification logos, subject to the requirements of subdivision (c)(5) of this rule regarding
use of terms such as certified, specialist and expert;




                                             F-5
                                                                                            Appendix D - Page 98
                       (G) prepaid or group legal service plans in which the lawyer
participates;


                       (H) acceptance of credit cards;


                       (I) fee for initial consultation and fee schedule, subject to the
requirements of subdivisions (c)(6) and (c)(7) of this rule regarding cost disclosures and
honoring advertised fees;


                       (J) common salutary language such as “best wishes,” “good luck,”
“happy holidays,” or “pleased to announce”;


                       (K) punctuation marks and common typographical marks;


                       (L) an illustration of the scales of justice not deceptively similar to
official certification logos or The Florida Bar logo, a gavel, or traditional renditions of
Lady Justice, the statue of liberty, the American flag, the American eagle, the State of
Florida flag, an unadorned set of law books, the inside or outside of a courthouse,
column(s), diploma(s), or a photograph of the lawyer or lawyers who are members of or
employed by the firm against a plain background consisting of a single solid color or a
plain unadorned set of law books; and


                (2) Lawyer Referral Services. A lawyer referral service may advertise its
name, location, telephone number, the referral fee charged, its hours of operation, the
process by which referrals are made, the areas of law in which referrals are offered, the
geographic area in which the lawyers practice to whom those responding to the
advertisement will be referred, and, if applicable, its nonprofit status, its status as a
lawyer referral service approved by The Florida Bar, and the logo of its sponsoring bar
association.




                                               F-6
                                                                                              Appendix D - Page 99
              (3) Public Service Announcements. A lawyer or law firm may be listed as a
sponsor of a public service announcement or charitable, civic, or community program or
event as long as the information about the lawyer or law firm is limited to the permissible
content set forth in subdivision (b)(1) of this rule;




        (c) Prohibitions and General Regulations Governing Content of
Advertisements and Unsolicited Written Communications.


                (1) Statements About Legal Services. A lawyer shall not make or permit
        to be made a false, misleading, or deceptive, or unfair communication about the
        lawyer or the lawyer’s services. A communication violates this rule if it:


                        (A) contains a material misrepresentation of fact or law or omits a
                fact necessary to make the statement considered as a whole not materially
                misleading;


                        (B) is directly or impliedly false or misleading;


                        (C) is potentially false or misleading;


                        (D) fails to disclose material information necessary to prevent the
                information supplied from being actually or potentially false or
                misleading;


                        (E) is unsubstantiated in fact;


                        (F) is deceptive;


                        (BG) contains any reference to past successes or results obtained
                or is otherwise likely to create an unjustified expectation about results the



                                              F-7
                                                                                          Appendix D - Page 100
       lawyer can achieve except as allowed in the rule regulating information
       about a lawyer’s services provided upon request;


               (H) guarantees results;


               (CI) states or implies that the lawyer can achieve results by means
       that violate the Rules of Professional Conduct or other law;


               (DJ) compares the lawyer’s services with other lawyers’ services,
       unless the comparison can be factually substantiated; or


               (EK) contains a testimonial.


       (2) Misleading or Deceptive Factual Statements. Any factual statement
contained in any advertisement or written communication or any information
furnished to a prospective client under this rule shall not:


               (A) be directly or impliedly false or misleading;


               (B) be potentially false or misleading;


               (C) fail to disclose material information necessary to prevent the
       information supplied from being actually or potentially false or
       misleading;


               (D) be unsubstantiated in fact; or


               (E) be unfair or deceptive.


       (32) Descriptive Statements. A lawyer shall not make statements
describing or characterizing the quality of the lawyer’s services in advertisements



                                     F-8
                                                                               Appendix D - Page 101
and unsolicited written communications; provided that this provision shall not
apply to information furnished to a prospective client at that person’s request or to
information supplied to existing clients.


       (43) Prohibited Visual and Verbal Portrayal and Illustrations. VisualA
lawyer shall not include in any advertisement or unsolicited written
communication any visual or verbal descriptions, depictions, illustrations or
portrayals of persons, things, or events shall not bethat are deceptive, misleading,
or manipulative or likely to confuse the viewer.


       (5) Advertising Areas of Practice. A lawyer or law firm shall not
advertise for legal employment in an area of practice in which the advertising
lawyer or law firm does not currently practice law.


       (64) Stating or Implying Florida Bar Approval. A lawyer or law firm
shall not make any statement that directly or impliedly indicates that the
communication has received any kind of approval from The Florida Bar.


(c) General Regulations Governing Content of Advertisements.


       (1) Use of Illustrations. Illustrations used in advertisements shall contain
no features that are likely to deceive, mislead, or confuse the viewer.


       (2) Fields of Practice. Every advertisement and written communication
that indicates 1 or more areas of law in which the lawyer or law firm practices
shall conform to the requirements of subdivision (c)(3) of this rule.


       (35) Communication of Fields of Practice. A lawyer may communicate
the fact that the lawyer does or does not practice in particular fields of law. A
lawyer shall not state or imply that the lawyer is “certified,” “board certified,” or a
“specialist” or an “expert” except as follows:



                                      F-9
                                                                                    Appendix D - Page 102
        (A) Florida Bar Certified Lawyers. A lawyer who complies with
the Florida certification plan as set forth in chapter 6, Rules Regulating
The Florida Bar, may inform the public and other lawyers of the lawyer’s
certified areas of legal practice. Such communications should identify
The Florida Bar as the certifying organization and may state that the
lawyer is “certified,” “board certified,” or a “specialist in (area of
certification)” or an “expert in (area of certification).”


        (B) Lawyers Certified by Organizations Other Than The Florida
Bar or Another State Bar. A lawyer certified by an organization other than
The Florida Bar or another state bar may inform the public and other
lawyers of the lawyer’s certified area(s) of legal practice by stating that the
lawyer is “certified,” “board certified,” or a “specialist in (area of
certification)” or an “expert in (area of certification” if:


                (i) the organization’s program has been accredited by The
        Florida Bar as provided elsewhere in these Rules Regulating The
        Florida Bar; and,


                (ii) the member includes the full name of the organization
        in all communications pertaining to such certification.


        (C) Certification by Other State Bars. A lawyer certified by
another state bar may inform the public and other lawyers of the lawyer’s
certified area(s) of legal practice and may state in communications to the
public that the lawyer is “certified,” “board certified,” or a “specialist in
(area of certification)” or an “expert in (area of certification)” if:


                (i) the state bar program grants certification on the basis of
        standards reasonably comparable to the standards of the Florida



                              F-10
                                                                           Appendix D - Page 103
               certification plan as set forth in chapter 6, Rules Regulating The
               Florida Bar, as determined by The Florida Bar; and,


                         (ii) the member includes the name of the state bar in all
               communications pertaining to such certification.


       (46) Disclosure of Liability For Expenses Other Than Fees. Every
advertisement and written communication that contains information about the
lawyer’s fee, including those that indicate no fee will be charged in the absence of
a recovery, shall disclose whether the client will be liable for any expenses in
addition to the fee.


       (57) Period for Which Advertised Fee Must be Honored. A lawyer who
advertises a specific fee or range of fees for a particular service shall honor the
advertised fee or range of fees for at least 90 days unless the advertisement
specifies a shorter period; provided that, for advertisements in the yellow pages of
telephone directories or other media not published more frequently than annually,
the advertised fee or range of fees shall be honored for no less than 1 year
following publication.


       (68) Firm Name. A lawyer shall not advertise services under a name that
violates the provisions of rule 4-7.104-7.9.




       (9) Language of Required Statements. Any words or statements required
by this subchapter to appear in an advertisement or direct mail communication
must appear in the same language in which the advertisement appears. If more
than 1 language is used in an advertisement or direct mail communication, any
words or statements required by this subchapter must appear in each language
used in the advertisement or direct mail communication.




                                      F-11
                                                                                     Appendix D - Page 104
       (10) Appearance of Required Statements. Any words or statements
required by this subchapter to appear in an advertisement or direct mail
communication must be clearly legible if written or intelligible if spoken aloud.


       (711) Payment by Nonadvertising Lawyer. No lawyer shall, directly or
indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the
same firm. Rule 4-1.5(f)(4)(D) (regarding the division of contingency fees) is not
affected by this provision even though the lawyer covered by rule 4-
1.5(f)(4)(D)(ii) advertises.


       (8) Referrals to Another Lawyer. If the case or matter will be referred to
another lawyer or law firm, the communication shall include a statement so
advising the prospective client.


       (912) Payment for Recommendations; Lawyer Referral Service Fees. A
lawyer shall not give anything of value to a person for recommending the
lawyer’s services, except that a lawyer may pay the reasonable cost of advertising
or written or recorded communication permitted by these rules, may pay the usual
charges of a lawyer referral service or other legal service organization, and may
purchase a law practice in accordance with rule 4-1.17.


       (10) Language of Required Statements. Any words or statements required
by this subchapter to appear in an advertisement or direct mail communication
must appear in the same language in which the advertisement appears. If more
than 1 language is used in an advertisement or direct mail communication, any
words or statements required by this subchapter must appear in each language
used in the advertisement or direct mail communication.


       (11) Appearance of Required Statements. Any words or statements
required by this subchapter to appear in an advertisement or direct mail
communication must be clearly legible if written or intelligible if spoken aloud. If



                                     F-12
                                                                                  Appendix D - Page 105
the words or statements appear in text, then the text also must be no smaller than
one-quarter the size of the largest type otherwise appearing in the advertisement.


       (12) Permissible Content of Advertisements. The following information
in advertisements and written communications shall be presumed not to violate
the provisions of subdivision (b)(1) of this rule:


               (A) subject to the requirements of this rule and rule 4-7.10, the
       name of the lawyer or law firm, 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, and a designation such
       as “attorney” or “law firm”;


               (B) date of admission to The Florida Bar and any other bars,
       current membership or positions held in The Florida Bar, its sections or
       committees, former membership or positions held in The Florida Bar, its
       sections or committees, together with dates of membership, former
       positions of employment held in the legal profession, together with dates
       the positions were held, years of experience practicing law, number of
       lawyers in the advertising law firm, and a listing of federal courts and
       jurisdictions other than Florida where the lawyer is licensed to practice;


               (C) technical and professional licenses granted by the state or
       other recognized licensing authorities and educational degrees received,
       including dates and institutions;


               (D) foreign language ability;




                                      F-13
                                                                                   Appendix D - Page 106
        (E) fields of law in which the lawyer practices, including official
certification logos, subject to the requirements of subdivisions (c)(2) and
(c)(3) of this rule;


        (F) prepaid or group legal service plans in which the lawyer
participates;


        (G) acceptance of credit cards;


        (H) fee for initial consultation and fee schedule, subject to the
requirements of subdivisions (c)(4) and (c)(5) of this rule;


        (I) a listing of the name and geographic location of a lawyer or
law firm as a sponsor of a public service announcement or charitable,
civic, or community program or event;


        (J) common salutary language such as “best wishes,” “good luck,”
“happy holidays,” or “pleased to announce”;


        (K) an illustration of the scales of justice not deceptively similar to
official certification logos or The Florida Bar logo, a gavel, or traditional
renditions of Lady Justice, or a photograph of the head and shoulders of
the lawyer or lawyers who are members of or employed by the firm
against a plain background consisting of a single solid color or a plain
unadorned set of law books; and


        (L) a lawyer referral service may advertise its name, location,
telephone number, the referral fee charged, its hours of operation, the
process by which referrals are made, the areas of law in which referrals are
offered, the geographic area in which the lawyers practice to whom those
responding to the advertisement will be referred, and, if applicable, its



                             F-14
                                                                            Appendix D - Page 107
               nonprofit status, its status as a lawyer referral service approved by The
               Florida Bar, and the logo of its sponsoring bar association.


       Comment


       This rule governs all communications about a lawyer’s services, including
advertising permitted by this subchapter. Whatever means are used to make known a
lawyer’s services, statements about them must be truthful. This precludes any material
misrepresentation or misleading omission, such as where a lawyer states or implies
certification or recognition as a specialist other than in accordance with this rule, where a
lawyer implies that any court, tribunal, or other public body or official can be improperly
influenced, or where a lawyer advertises a particular fee or a contingency fee without
disclosing whether the client will also be liable for costs. Another example of a
misleading omission is an advertisement for a law firm that states that all the firm’s
lawyers are juris doctors but does not disclose that a juris doctorate is a law degree rather
than a medical degree of some sort and that virtually any law firm in the United States
can make the same claim. Although this rule permits lawyers to list the jurisdictions and
courts to which they are admitted, it also would be misleading for a lawyer who does not
list other jurisdictions or courts to state that the lawyer is a member of The Florida Bar.
Standing by itself, that otherwise truthful statement implies falsely that the lawyer
possesses a qualification not common to virtually all lawyers practicing in Florida. The
latter 2 examples of misleading omissions also are examples of unfair advertising.


Prohibited information


       The prohibition in subdivision (b)(1)(B)(c)(1)(G) of statements that may create
“unjustified expectations” precludes advertisements about results obtained on behalf of a
client, such as the amount of a damage award or the lawyer’s record in obtaining
favorable verdicts, and advertisements containing client endorsements or testimonials.
Such information may create the unjustified expectation that similar results can be
obtained for others without reference to the specific factual and legal circumstances.



                                            F-15
                                                                                           Appendix D - Page 108
        The prohibition in subdivision (b)(1)(D)(c)(1)(J) of comparisons that cannot be
factually substantiated would preclude a lawyer from representing that the lawyer or the
lawyer’s law firm is “the best,” “one of the best,” or “one of the most experienced” in a
field of law.


        The prohibition in subdivision (b)(1)(E)(c)(1)(K) precludes endorsements or
testimonials, whether from clients or anyone else, because they are inherently misleading
to a person untrained in the law. Potential clients are likely to infer from the testimonial
that the lawyer will reach similar results in future cases. Because the lawyer cannot
directly make this assertion, the lawyer is not permitted to indirectly make that assertion
through the use of testimonials.


        Subdivision (b)(4)(c)(3) prohibits visual or verbal descriptions, depictions, or
portrayals or illustrations in any advertisement which create suspense, or contain
exaggerations or appeals to the emotions, call for legal services, or create consumer
problems through characterization and dialogue ending with the lawyer solving the
problem. Illustrations permitted under Zauderer v. Office of Disciplinary Counsel of the
Supreme Court of Ohio, 471 U.S. 626 (1985), are informational and not misleading, and
are therefore permissible. As an example, a drawing of a fist, to suggest the lawyer’s
ability to achieve results, would be barred. Examples of permissible illustrations would
include a graphic rendering of the scales of justice to indicate that the advertising attorney
practices law, a picture of the lawyer, or a map of the office location.


Communication of fields of practice


        This rule permits a lawyer or law firm to indicate areas of practice in
communications about the lawyer’s or law firm’s services, such as in a telephone
directory or other advertising, 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 such fields, the lawyer



                                             F-16
                                                                                           Appendix D - Page 109
is permitted so to indicate. However, no lawyer who is not certified by The Florida Bar,
by another state bar with comparable standards, or an organization accredited by The
Florida Bar may be described to the public as a “specialist” or as “specializing,”
“certified,” “board certified,” being an “expert” or having “expertise in,” or any variation
of similar import. A lawyer 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.


Paying others to recommend a lawyer


        A lawyer is allowed to pay for advertising permitted by this rule and for the
purchase of a law practice in accordance with the provisions of rule 4-1.17, but otherwise
is not permitted to pay or provide other tangible benefits to another person for procuring
professional work. However, a legal aid agency or prepaid legal services plan may pay to
advertise legal services provided under its auspices. Likewise, a lawyer may participate
in lawyer referral programs and pay the usual fees charged by such programs, subject,
however, to the limitations imposed by rule 4-7.114-7.10. Subdivision (c)(9)This rule
does not prohibit paying regular compensation to an assistant, such as a secretary or
advertising consultant, to prepare communications permitted by this rule.


Required disclosures


        Required disclosures would be ineffective if they appeared in an advertisement so
briefly or minutely as to be overlooked or ignored. Thus the type size to be used for
required disclosures is specified to ensure that the disclosures will be conspicuous. Thus,
required information must be legible if written or intelligible if spoken aloud to ensure
that the recipient receives the information.




                                               F-17
                                                                                             Appendix D - Page 110
RULE 4-7.3 ADVERTISEMENTS IN THE PUBLIC PRINT MEDIA


       (a) Generally. Advertisements disseminated in the public print media are subject
to the requirements of rule 4-7.2.


       (b) Disclosure Statement. Except as otherwise provided in this subdivision, all
advertisements other than lawyer referral service advertisements shall contain the
following disclosure: “The hiring of a lawyer is an important decision that should not be
based solely upon advertisements. Before you decide, ask us to send you free written
information about our qualifications and experience.” Lawyer referral service
advertisements shall contain the following disclosure: “The hiring of a lawyer is an
important decision. Before you decide to hire the lawyer to whom you are referred, ask
that lawyer for written information about that lawyer's qualifications and experience.”
Outdoor advertisements may contain, in lieu of the above disclosure, the following
abbreviated version: “Before choosing a lawyer, ask for written information about the
lawyer's legal qualifications and experience.” These disclosures, however, need not
appear in advertisements in the public print media that contain no illustrations and no
information other than that listed in subdivision (c)(12) of rule 4-7.2, or written
communications sent in compliance with rule 4-7.4.


Comment


       The disclosure required by this rule is designed to encourage the informed
selection of a lawyer. A prospective client is entitled to know the experience and
qualifications of any lawyer seeking to represent the prospective client.




                                             F-18
                                                                                          Appendix D - Page 111
RULE 4-7.4 DIRECT CONTACT WITH PROSPECTIVE CLIENTS


       (a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer shall
not solicit professional employment from a prospective client with whom the lawyer has
no family or prior professional relationship, in person or otherwise, when a significant
motive for the lawyer’s doing so is the lawyer’s pecuniary gain. A lawyer shall not
permit employees or agents of the lawyer to solicit in the lawyer’s behalf. A lawyer shall
not enter into an agreement for, charge, or collect a fee for professional employment
obtained in violation of this rule. The term “solicit” includes contact in person, by
telephone, telegraph, or facsimile, or by other communication directed to a specific
recipient and includes (i) any written form of communication directed to a specific
recipient and not meeting the requirements of subdivision (b) of this rule, and (ii) any
electronic mail communication directed to a specific recipient and not meeting the
requirements of subdivision (c) of rule 4-7.6.


       (b) Written Communication Sent on an Unsolicited Basis.


               (1) A lawyer shall not send, or knowingly permit to be sent, on the
       lawyer’s behalf or on behalf of the lawyer’s firm or partner, an associate, or any
       other lawyer affiliated with the lawyer or the lawyer’s firm, aan unsolicited
       written communication directly or indirectly to a prospective client for the
       purpose of obtaining professional employment if:


                       (A) the written communication concerns an action for personal
               injury or wrongful death or otherwise relates to an accident or disaster
               involving the person to whom the communication is addressed or a
               relative of that person, unless the accident or disaster occurred more than
               30 days prior to the mailing of the communication;




                                            F-19
                                                                                           Appendix D - Page 112
               (B) the written communication concerns a specific matter and the
       lawyer knows or reasonably should know that the person to whom the
       communication is directed is represented by a lawyer in the matter;


               (C) it has been made known to the lawyer that the person does not
       want to receive such communications from the lawyer;


               (D) the communication involves coercion, duress, fraud,
       overreaching, harassment, intimidation, or undue influence;


               (E) the communication contains a false, fraudulent, misleading, or
       deceptive, or unfair statement or claim or is improper under subdivision
       (b)(1)(c)(1) of rule 4-7.2; or


               (F) the lawyer knows or reasonably should know that the physical,
       emotional, or mental state of the person makes it unlikely that the person
       would exercise reasonable judgment in employing a lawyer.


       (2) Written communications to prospective clients for the purpose of
obtaining professional employment are subject to the following requirements:


               (A) Written communications to a prospective client are subject to
       the requirements of rule 4-7.2.


               (B) The first page of such written communications shall be plainly
       marked “advertisement” in red ink, and the lower left corner of the face of
       the envelope containing a written communication likewise shall carry a
       prominent, red “advertisement” mark. If the written communication is in
       the form of a self-mailing brochure or pamphlet, the “advertisement” mark
       in red ink shall appear on the address panel of the brochure or pamphlet




                                        F-20
                                                                               Appendix D - Page 113
and on the inside of the brochure or pamphlet. Brochures solicited by
clients or prospective clients need not contain the “advertisement” mark.


       (C) A copy of each such written communication and a sample of
the envelopes in which the communications are enclosed shall be filed
with the standing committee on advertising either prior to or concurrently
with the mailing of the communication to a prospective client, as provided
in rule 4-7.7. The lawyer also shall retain a copy of each written
communication for 3 years. If identical written communications are sent
to 2 or more prospective clients, the lawyer may comply with this
requirement by filing 1 of the identical written communications and
retaining for 3 years a single copy together with a list of the names and
addresses of persons to whom the written communication was sent.


       (DC) Written communications mailed to prospective clients shall
be sent only by regular U.S. mail, not by registered mail or other forms of
restricted delivery.


       (ED) Every written communication shall be accompanied by 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 shall be
accompanied by a written statement detailing the background, training,
and experience of each lawyer to whom the recipient may be referred.


       (FE) If a contract for representation is mailed with the written
communication, the top of each page of the contract shall be marked
“SAMPLE” in red ink in a type size 1 size larger than the largest type used




                            F-21
                                                                            Appendix D - Page 114
in the contract and the words “DO NOT SIGN” shall appear on the client
signature line.


        (GF) 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 shall be: “If you have already
retained a lawyer for this matter, please disregard this letter.”


        (HG) Written communications shall not be made to resemble legal
pleadings or other legal documents. This provision does not preclude the
mailing of brochures and pamphlets.


        (IH) If a lawyer other than the lawyer whose name or signature
appears on the communication will actually handle the case or matter, any
written communication concerning a specific matter shall include a
statement so advising the client.


        (JI) Any written communication prompted by a specific
occurrence involving or affecting the intended recipient of the
communication or a family member shall disclose how the lawyer
obtained the information prompting the communication. The disclosure
required by this rule shall be specific enough to help the recipient
understand the extent of the lawyer’s knowledge regarding the recipient’s
particular situation.


        (KJ) A written communication seeking employment by a specific
prospective client in a specific matter shall not reveal on the envelope, or
on the outside of a self-mailing brochure or pamphlet, the nature of the
client’s legal problem.




                             F-22
                                                                           Appendix D - Page 115
Comment


       There is a potential for abuse inherent in direct solicitation by a lawyer of
prospective clients known to need legal services. It subjects the person to the private
importuning of a trained advocate, in a direct interpersonal encounter. A prospective
client often feels overwhelmed by the situation giving rise to the need for legal services
and may have an impaired capacity for reason, judgment, and protective self-interest.
Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the
lawyer’s own interest, which may color the advice and representation offered the
vulnerable prospect.


       The situation is therefore fraught with the possibility of undue influence,
intimidation, and overreaching. This potential for abuse inherent in direct solicitation of
prospective clients justifies the 30-day restriction, particularly since lawyer advertising
permitted under these rules offers an alternative means of communicating necessary
information to those who may be in need of legal services.


       Advertising makes it possible for a prospective client to be informed about the
need for legal services, and about the qualifications of available lawyers and law firms,
without subjecting the prospective client to direct personal persuasion that may
overwhelm the client’s judgment.


       The use of general advertising to transmit information from lawyer to prospective
client, rather than direct private contact, will help to assure that the information flows
cleanly as well as freely. Advertising is out in public view, thus subject to scrutiny by
those who know the lawyer. This informal review is itself likely to help guard against
statements and claims that might constitute false or misleading communications. Direct
private communications from a lawyer to a prospective client are not subject to such
third-party scrutiny and consequently are much more likely to approach (and perhaps
cross) the dividing line between accurate representations and those that are false and
misleading.



                                             F-23
                                                                                             Appendix D - Page 116
       Persons with whom the lawyer has a prior professional relationship are exempted
from the general prohibition against direct, in-person solicitation. A prior professional
relationship requires that the lawyer personally had a direct and continuing relationship
with the person in the lawyer’s capacity as a professional. Thus, a lawyer with a
continuing relationship as the patient of a doctor, for example, does not have the
professional relationship contemplated by the rule because the lawyer is not involved in
the relationship in the lawyer’s professional capacity. Similarly, a lawyer who is a
member of a charitable organization totally unrelated to the practice of law and who has a
direct personal relationship with another member of that organization does not fall within
the definition. On the other hand, a lawyer who is the legal advisor to a charitable board
and who has direct, continuing relationships with members of that board does have prior
professional relationships with those board members as contemplated by the rule.
Additionally, a lawyer who has a direct, continuing relationship with another professional
where both are members of a trade organization related to both the lawyer’s and the
nonlawyer’s practices would also fall within the definition. A lawyer’s relationship with
a doctor because of the doctor’s role as an expert witness is another example of a prior
professional relationship as provided in the rule. However, a lawyer who merely shared a
membership in an organization in common with another person without any direct,
personal contact would not meet the test. Similarly, a lawyer who speaks at a seminar
does not develop a professional relationship within in the meaning of the rule with
seminar attendees merely by virtue of being a speaker. If individual seminar attendees
request information from the lawyer who is a speaker, the information provided is then at
the request of the person and not subject to the advertising rules.


       Direct written communications seeking employment by specific prospective
clients generally present less potential for abuse or overreaching than in-person
solicitation and are therefore not prohibited for most types of legal matters, but are
subject to reasonable restrictions, as set forth in this rule, designed to minimize or
preclude abuse and overreaching and to ensure lawyer accountability if such should
occur. This rule allows targeted mail solicitation of potential plaintiffs or claimants in



                                             F-24
                                                                                         Appendix D - Page 117
personal injury and wrongful death causes of action or other causes of action that relate to
an accident, disaster, death, or injury, but only if mailed at least 30 days after the
incident. This restriction is reasonably required by the sensitized state of the potential
clients, who may be either injured or grieving over the loss of a family member, and the
abuses that experience has shown exist in this type of solicitation.


        Letters of solicitation and their envelopes must be clearly marked
“advertisement.” This will avoid the recipient’s perceiving that there is a need to open
the envelope because it is from a lawyer or law firm, only to find the recipient is being
solicited for legal services. With the envelope and letter marked “advertisement,” the
recipient can choose to read the solicitation, or not to read it, without fear of legal
repercussions.


        In addition, the lawyer or law firm should reveal the source of information used to
determine that the recipient has a potential legal problem. Disclosure of the information
source will help the recipient to understand the extent of knowledge the lawyer or law
firm has regarding the recipient’s particular situation and will avoid misleading the
recipient into believing that the lawyer has particularized knowledge about the recipient’s
matter if the lawyer does not. The lawyer or law firm must disclose sufficient
information or explanation to allow the recipient to locate for himself or herself the
information that prompted the communication from the lawyer.


        This rule would not prohibit a lawyer from contacting representatives of
organizations or groups that may be interested in establishing a group or prepaid legal
plan for its members, insureds, beneficiaries, or other third parties for the purpose of
informing such entities of the availability of and details concerning the plan or
arrangement that the lawyer or the lawyer’s law firm is willing to offer. This form of
communication is not directed to a specific prospective client known to need legal
services related to a particular matter. Rather, it is usually addressed to an individual
acting in a fiduciary capacity seeking a supplier of legal services for others who may, if
they choose, become prospective clients of the lawyer. Under these circumstances, the



                                             F-25
                                                                                            Appendix D - Page 118
activity that the lawyer undertakes in communicating with such representatives and the
type of information transmitted to the individual are functionally similar to and serve the
same purpose as advertising permitted under other rules in this subchapter.


RULE 4-7.5 ADVERTISEMENTS IN THE ELECTRONIC MEDIA
OTHER THAN COMPUTER-ACCESSED COMMUNICATIONS


       (a) Generally. With the exception of computer-based advertisements (which are
subject to the special requirements set forth in rule 4-7.6), all advertisements in the
electronic media, including but not limited to television and radio, are subject to the
requirements of rule 4-7.2.


       (b) Appearance on Television or Radio. Advertisements on the electronic
media such as television and radio shall conform to the requirements of this rule.


               (1) Prohibited Content. Television and radio advertisement shall not
               contain:


                       (A) any feature that is deceptive, misleading, manipulative, or that
               is likely to confuse the viewer;


                       (B) any spokesperson's voice or image that is recognizable to the
                       public; or


                       (C) any background sound other than instrumental music.


               (2) Permissible Content. Television and radio advertisements may
               contain:


                       (A) images that otherwise conform to the requirements of these
                       rules; or



                                             F-26
                                                                                          Appendix D - Page 119
                       (B) a non-attorney spokesperson speaking on behalf of the
attorneylawyer or law firm, as long as the spokesperson is not a celebrity recognizable to
the public. If a spokesperson is used, the spokesperson shall provide a spoken The
advertisement shall make an affirmative disclosure identifying the spokesperson as a
spokesperson and disclosing that the spokesperson is not an attorney a lawyer if it is
unclear from the context of the advertisement that the spokesperson is not a lawyer.


Comment


       Television is now one of the most powerful media for conveying information to
the public; a blanket prohibition against television advertising, therefore, would impede
the flow of information about legal services to many sectors of the public. However, the
unique characteristics of electronic media, including the pervasiveness of television and
radio, the ease with which these media are abused, and the passiveness of the viewer or
listener, make the electronic media especially subject to regulation in the public interest.
Therefore, greater restrictions on the manner of television and radio advertising are
justified than might be appropriate for advertisements in the other media. To prevent
abuses, including potential interferences with the fair and proper administration of justice
and the creation of incorrect public perceptions or assumptions about the manner in
which our legal system works, and to promote the public's confidence in the legal
profession and this country's system of justice while not interfering with the free flow of
useful information to prospective users of legal services, it is necessary also to restrict the
techniques used in television and radio advertising.
       This rule is designed to ensure that the advertising is not misleading and does not
create unreasonable or unrealistic expectations about the results the lawyer may be able
to obtain in any particular case, and to encourage the provision of useful information to
the public about the availability and terms of legal services. Thus, the rule allows lawyer
advertisements in which a lawyer who is a member of the advertising firm personally
appears to speak regarding the legal services the lawyer or law firm is available to
perform, the fees to be charged for such services, and the background and experience of



                                             F-27
                                                                                           Appendix D - Page 120
the lawyer or law firm. The prohibition against false, misleading, or manipulative
advertising is intended to preclude, among other things, the use of scenes creating
suspense, scenes containing exaggerations, or situations calling for legal services, scenes
creating consumer problems through characterization and dialogue ending with the
lawyer solving the problem, and the audio or video portrayal of an event or situation.
Although dialogue is not necessarily prohibited under this rule, advertisements using
dialogue are more likely to be misleading or manipulative than those advertisements
using a single lawyer to articulate factual information about the lawyer or law firm’s
services.


       A firm partner or shareholder, of course, is a “member” of a law firm within the
intent of the rule; likewise, a lawyer who is a law firm associate as defined in The Florida
Bar v. Fetterman, 439 So.2d 835 (Fla. 1983) is a firm “member.” Whether other lawyers
are “members” of a firm for purposes of this rule must be evaluated in light of criteria
that include whether the lawyer's practice is physically located at the firm and whether
the lawyer practices solely through the firm. There should be a presumption that lawyers
other than partners, shareholders, or associates are not “members” of a law firm for
purposes of this rule.


       The prohibition against any background sound other than instrumental music
precludes, for example, the sound of sirens or car crashes and the use of jingles.


       It is misleading to use a spokesperson in such a way as to appear that the
spokesperson is a lawyer or a member of the law firm being advertised. If it is unclear
from the context of the advertisement that a spokesperson is not a lawyer, the
advertisement must affirmatively disclose that the spokesperson is a spokesperson and
not a lawyer. An example of a misleading context is a nonlawyer spokesperson speaking
on behalf of the firm stating that “we” (the firm) will provide legal services and the like.




                                            F-28
                                                                                           Appendix D - Page 121
RULE 4-7.6 COMPUTER-ACCESSED COMMUNICATIONS


       (a) Definition. For purposes of this subchapter, “computer-accessed
communications” are defined as information regarding a lawyer’s or law firm’s services
that is read, viewed, or heard directly through the use of a computer. Computer-accessed
communications include, but are not limited to, Internet presences such as home pages or
World Wide Web sites, unsolicited electronic mail communications, and information
concerning a lawyer’s or law firm’s services that appears on World Wide Web search
engine screens and elsewhere.


       (b) Internet Presence. All World Wide Web sites and home pages accessed via
the Internet that are controlled or sponsored by a lawyer or law firm and that contain
information concerning the lawyer’s or law firm’s services:


               (1) shall disclose all jurisdictions in which the lawyer or members of the
       law firm are licensed to practice law;


               (2) shall disclose 1 or more bona fide office locations of the lawyer or law
       firm, in accordance with subdivision (a)(2) of rule 4-7.2; and


               (3) are considered to be information provided upon request and, therefore,
       are otherwise governed by the requirements of rule 4-7.9not subject to subchapter
       4-7.


       (c) Electronic Mail Communications. A lawyer shall not send, or knowingly
permit to be sent, on the lawyer’s behalf or on behalf of the lawyer’s firm or partner, an
associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, an
unsolicited electronic mail communication directly or indirectly to a prospective client
for the purpose of obtaining professional employment unless:




                                            F-29
                                                                                         Appendix D - Page 122
               (1) the requirements of rule 4-7.2 and subdivisions (b)(1), (b)(2)(A),
       (b)(2)(D), (b)(2)(E), (b)(2)(F), (b)(2)(G), (b)(2)(H), and (b)(2)(I), and (b)(2)(J) of
       rule 4-7.4 are met;


               (2) the communication discloses 1 or more bona fide office locations of
       the lawyer or lawyers who will actually perform the services advertised, in
       accordance with subdivision (a)(2) of rule 4-7.2; and


               (3) the subject line of the communication states “legal
       advertisement.”begins with “LEGAL ADVERTISEMENT.”


       (d) Advertisements. All computer-accessed communications concerning a
lawyer’s or law firm’s services, other than those subject to subdivisionssubdivision (b)
and (c) of this rule, are subject to the requirements of rule 4-7.2.


Comment


       Advances in telecommunications and computer technology allow lawyers to
communicate with other lawyers, clients, prospective clients, and others in increasingly
quicker and more efficient ways. Regardless of the particular technology used, however,
a lawyer’s communications with prospective clients for the purpose of obtaining
professional employment must meet standards designed to protect the public from false,
deceptive, misleading, or confusing messages about lawyers or the legal system and to
encourage the free flow of useful legal-related information to the public.


       The specific regulations that govern computer-accessed communications differ
according to the particular variety of communication employed. For example, a lawyer’s
Internet web site is accessed by the viewer upon the viewer’s initiative and, accordingly,
the standards governing such communications correspond to the rules applicable to
information provided to a prospective client at the prospective client’s request.




                                             F-30
                                                                                          Appendix D - Page 123
       In contrast, unsolicited electronic mail messages from lawyers to prospective
clients are functionally comparable to direct mail communications and thus are governed
by similar rules. Additionally, communications advertising or promoting a lawyer’s
services that are posted on search engine screens or elsewhere by the lawyer, or at the
lawyer’s behest, with the hope that they will be seen by prospective clients are simply a
form of lawyer advertising and are treated as such by the rules.


       Examples of computer-accessed communications other than websites and
electronic mail include pop-up advertisements and banner advertisements. As indicated
by the rule, such advertisements must comply with rule 4-7.2.


       This rule is not triggered merely because someone other than the lawyer
gratuitously links to, or comments on, a lawyer’s Internet web site.


RULE 4-7.7 EVALUATION OF ADVERTISEMENTS


       (a) Filing and Advisory Opinion. Subject to the exemptions stated in rule 4-
7.8, any lawyer who advertises services through any public media or through written
communications sent in compliance with rule 4-7.4 or 4-7.6(c)on an unsolicited basis to
prospective clients shall file a copy of each such advertisement with the standing
committee on advertisingThe Florida Bar at its headquarters address in Tallahassee for
evaluation of compliance with these rules. The copy shall be filed either prior to or
concurrently with the lawyer’s first dissemination of the advertisement or written
communication and shall be accompanied by the information and fee specified in
subdivision (b) of this rule. A lawyer may obtain an advisory opinion concerning the
compliance of a contemplated advertisement or written communication in advance of
disseminating the advertisement or communication by submitting the material and fee
specified in subdivision (b) of this rule to the standing committee on advertisingThe
Florida Bar at least 15 days prior to such dissemination. A lawyer may not obtain an
advisory opinion concerning communications that are not subject to subchapter 4-7 as
listed in Rule 4-7.1(e) through (h). If the committeeThe Florida Bar finds that the



                                           F-31
                                                                                          Appendix D - Page 124
advertisement complies with these rules, the lawyer’s voluntary submission shall be
deemed to satisfy the filing requirement set forth in this rule.


       (b) Contents of Filing. A filing with the committeeThe Florida Bar as required
or permitted by subdivision (a) shall consist of:


               (1) a copy of the advertisement or communication in the form or forms in
       which it is to be disseminated (e.g., videotapes, audiotapes, print media,
       photographs of outdoor advertising);


               (2) a transcript, if the advertisement or communication is on videotape or
       audiotape;


               (3) an accurate English translation, if the advertisement appears in a
       language other than English;


               (34) a sample envelope in which the written communication will be
       enclosed, if the communication is to be mailed;


               (45) a statement listing all media in which the advertisement or
       communication will appear, the anticipated frequency of use of the advertisement
       or communication in each medium in which it will appear, and the anticipated
       time period during which the advertisement or communication will be used; and


               (56) a fee paid to The Florida Bar, in an amount of $100 for submissions
       timely filed as provided in subdivision (a), or $250 for submissions not timely
       filed. This fee shall be used to offset the cost of evaluation and review of
       advertisements submitted under these rules and the cost of enforcing these rules.


       (c) Evaluation of Advertisements. The committeeFlorida Bar shall evaluate all
advertisements and written communications filed with it pursuant to this rule for



                                             F-32
                                                                                         Appendix D - Page 125
compliance with the applicable rules set forth in this subchapter 4-7. The
committeeFlorida Bar shall complete its evaluation within 15 days of receipt of a filing
unless the committeeThe Florida Bar determines that there is reasonable doubt that the
advertisement or written communication is in compliance with the rules and that further
examination is warranted but cannot be completed within the 15-day period, and so
advises the filer within the 15-day period. In the latter event, the committeeThe Florida
Bar shall complete its review as promptly as the circumstances reasonably allow. If the
committeeThe Florida Bar does not send any communication to the filer within 15 days,
the advertisement will be deemed approved.


       (d) Substantiating Information. If requested to do so by the committeeThe
Florida Bar, the filing lawyer shall submit information to substantiate representations
made or implied in that lawyer’s advertisement or written communication.


       (e) Notice of Noncompliance; Effect of Continued Use of Advertisement.
When the committeeThe Florida Bar determines that an advertisement or written
communication is not in compliance with the applicable rules, the committeeThe Florida
Bar shall advise the lawyer that dissemination or continued dissemination of the
advertisement or written communication may result in professional discipline.


       (f) Committee Determination Not Binding; EvidenceReliance on Notice of
Compliance. A finding of compliance by the committeeThe Florida Bar of either
compliance or noncompliance shall not 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, but may be offered as evidence.


       (g) Change of Circumstances; Refiling Requirement. If a change of
circumstances occurring subsequent to the committee’sThe Florida Bar’s evaluation of an
advertisement or written communication raises a substantial possibility that the
advertisement or communication has become false or misleading as a result of the change
in circumstances, the lawyer shall promptly refile the advertisement or a modified



                                           F-33
                                                                                          Appendix D - Page 126
advertisement with the committeeThe Florida Bar along with an explanation of the
change in circumstances and an additional fee set by the board of governors but not
exceeding $100.


       (h) Maintaining Copies of Advertisements. A copy or recording of an
advertisement or written or recorded communication shall be submitted to the standing
committee on advertisingThe Florida Bar in accordance with the requirements of rule 4-
7.7, and the lawyer shall 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 unsolicited written
communications are sent to 2 or more prospective clients, the lawyer may comply with
this requirement by filing 1 of the identical unsolicited written communications and
retaining for 3 years a single copy together with a list of the names and addresses of
persons to whom the unsolicited written communication was sent.


Comment


       This rule has a dual purpose: to enhance the court’s and the bar’s ability to
monitor advertising practices for the protection of the public and to assist members of the
bar to conform their advertisements to the requirements of these rules. This rule gives
lawyers the option of submitting their advertisements to the committeeThe Florida Bar
for review prior to first use or submitting their advertisements at the time of first use. In
either event, the committeeThe Florida Bar will advise the filing lawyer in writing
whether the advertisement appears to comply with the rules. The committee’s Florida
Bar’s opinion will be advisory only, but may be considered as evidence of a good faith
effort to comply with these rulesbinding on The Florida Bar in a grievance proceeding. A
lawyer who wishes to obtain a safe harbor from discipline can, therefore, submit the
lawyer’s advertisement and obtain The Florida Bar’s opinion prior to disseminating the
advertisement. A lawyer who voluntarily files an advertisement and obtains a notice of
compliance from The Florida Bar prior to using the advertisement is therefore immune
from grievance liability unless the advertisement contains a misrepresentation that is not
apparent from the face of the advertisement. A lawyer who wishes to be able to rely on



                                             F-34
                                                                                          Appendix D - Page 127
the committee’sThe Florida Bar’s opinion as demonstrating the lawyer’s good faith effort
to comply with these rules has the responsibility of supplying the committeeThe Florida
Bar with all information material to a determination of whether an advertisement is false
or misleading.


RULE 4-7.8 EXEMPTIONS FROM THE FILING AND REVIEW
REQUIREMENT


       The following are exempt from the filing requirements of rule 4-7.7:


       (a) any advertisement in any of the public media, including the yellow pages of
telephone directories, that contains neither illustrations nor information other than
permissible content of advertisements set forth elsewhere in this subchapterlisted in Rule
4-7.2(b).


       (b) a brief announcement in any of the public media 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 name, the city where the law offices are located,permissible content
of advertisements listed in Rule 4-7.2(b) and the fact of the sponsorship or contribution.
In determining whether an announcement is a public service announcement for purposes
of this rule and the rule setting forth permissible content of advertisements, the following
are criteria that 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 contains information concerning the
       lawyer's or law firm's area of practice, legal background, or experience;



                                            F-35
                                                                                        Appendix D - Page 128
                 (3) whether the announcement contains the address or telephone number
         of the lawyer or law firm;


                 (4) whether the announcement concerns a legal subject;


                 (5) whether the announcement contains legal advice; and


                 (6) 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) Any written communications requested by a prospective client.


         (fd) 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.


         (g) Computer-accessed communications as described in subdivision (b) of rule
4-7.6.


Comment
 In The Florida Bar v. Doe, 634 So. 2d 160 (Fla. 1994), the court recognized the need
for specific guidelines to aid lawyers and the bar in determining whether a particular
announcement in the public media is a public service announcement as contemplated in
this rule and rule 4-7.2. Subdivisions (b)(1)-(6) of this rule respond to the court's concern
by setting forth criteria that, while not intended to be exclusive, provide the needed



                                               F-36
                                                                                         Appendix D - Page 129
guidance. With the exception of subdivision (b)(3), these criteria are based on factors
considered by the court in Doe.


RULE 4-7.9 INFORMATION ABOUT A LAWYER'S
SERVICES PROVIDED UPON REQUEST


       (a) Generally. Information provided about a lawyer's or law firm's services upon
request shall comply with the requirements of rule 4-7.2 unless otherwise provided in this
subchapter.


       (b) Request for Information by Potential Client. Whenever a potential client
shall request information regarding a lawyer or law firm for the purpose of making a
decision regarding employment of the lawyer or law firm:


               (1) The lawyer or law firm shall promptly furnish (by mail if requested)
       the written (including computer-accessed) information described in subdivision
       (c) of this rule.


               (2) The lawyer or law firm may furnish such additional factual
       information regarding the lawyer or law firm deemed valuable to assist the client.


               (3) If it is believed that the client is in need of services that will require
       that the client read and sign a copy of the “Statement of Client's Rights” as
       required by these rules, then a copy of such statement shall be furnished
       contemporaneously with the above information.


               (4) If the information furnished to the client includes a fee contract, the
       top of each page of the contract shall 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” shall appear on the client signature line.




                                             F-37
                                                                                            Appendix D - Page 130
               (5) Notwithstanding the provisions of subdivision (b)(1)(B) of rule 4-7.2,
       information provided to a potential client in response to a potential client's request
       may contain factually verifiable statements concerning past results obtained by
       the lawyer or law firm, if, either alone or in the context in which they appear, such
       statements are not otherwise misleading.


       (c) Information Regarding Qualifications. Each lawyer or law firm that
advertises the lawyer's or law firm's availability to provide legal services shall have
available in written form for delivery to any potential client:


               (1) a factual statement detailing the background, training, and experience
       of each lawyer or the law firm;


               (2) if the lawyer or law firm claims special expertise in the representation
       of clients in special matters or publicly limits the lawyer's or law firm's practice to
       special types of cases or clients, written information setting forth the factual
       details of the lawyer's experience, expertise, background, and training in such
       matters.


       (d) Proof of Statements or Claims. Upon reasonable request by The Florida
Bar, a lawyer shall promptly provide proof that any statement or claim made in any
advertisement or written communication, as well as the information furnished to a
prospective client as authorized or required by these rules, is in compliance with rule 4-
7.2.


       (e) Disclosure of Intent to Refer Matter to Another Lawyer or Law Firm. A
statement and any information furnished to a prospective client, as authorized by
subdivision (b) of this rule, that a lawyer or law firm will represent a client in a particular
type of matter, without appropriate qualification, shall be presumed to be misleading if
the lawyer reasonably believes that a lawyer or law firm not associated with the originally
retained lawyer or law firm will be associated or act as primary counsel in representing



                                             F-38
                                                                                           Appendix D - Page 131
the client. In determining whether the statement is misleading in this respect, the history
of prior conduct by the lawyer in similar matters may be considered.


Comment


       Consumers and potential clients often will find it useful to receive factual,
objective information from lawyers who are advertising their availability to handle legal
matters. The rule provides that potential clients may request such information and be
given an opportunity to review that information without being required to come to a
lawyer's office to obtain it. Selection of appropriate counsel is based upon a number of
factors. However, selection can be enhanced by potential clients having factual
information at their disposal for review and comparison.


       This rule does not require a lawyer or law firm to provide information concerning
the lawyer's or law firm's services when requested if the lawyer or law firm is not
interested in representing the person or entity requesting the information.


RULE 4-7.104-7.9 FIRM NAMES AND LETTERHEAD


       (a) False, Misleading, or Deceptive. A lawyer shall not use a firm name,
letterhead, or other professional designation that violates subdivision (b)(1) ofis false,
misleading, or deceptive as set forth in subdivision (c)(1) of rule 4-7.2.


       (b) Trade Names. A lawyer may practice under a trade name if the name is not
deceptive and does not imply a connection with a government agency or with a public or
charitable legal services organization, does not imply that the firm is something other
than a private law firm, and is not otherwise in violation of subdivision (b)(1) offalse,
misleading, or deceptive as set forth in subdivision (c)(1) of rule 4-7.2. A lawyer in
private practice may use the term “legal clinic” or “legal services” in conjunction with the
lawyer’s own name if the lawyer’s practice is devoted to providing routine legal services
for fees that are lower than the prevailing rate in the community for those services.



                                             F-39
                                                                                             Appendix D - Page 132
        (c) Advertising Under Trade Name. A lawyer shall not advertise under a trade
or fictitious name, except that a lawyer who actually practices under a trade name as
authorized by subdivision (b) may use that name in advertisements. A lawyer who
advertises under a trade or fictitious name shall be in violation of this rule unless the
same name is the law firm name that appears on the lawyer’s letterhead, business cards,
office sign, and fee contracts, and appears with the lawyer’s signature on pleadings and
other legal documents.


        (d) Law Firm with Offices in More Than 1 Jurisdiction. A law firm with
offices in more than 1 jurisdiction may use the same name in each jurisdiction, but
identification of the lawyers in an office of the firm shall indicate the jurisdictional
limitations on those not licensed to practice in the jurisdiction where the office is located.


        (e) Name of Public Officer in Firm Name. The name of a lawyer holding a
public office shall not be used in the name of a law firm, or in communications on its
behalf, during any substantial period in which the lawyer is not actively and regularly
practicing with the firm.


        (f) Partnerships and Authorized Business Entities. Lawyers may state or
imply that they practice in a partnership or authorized business entity only when that is
the fact.


        (g) Insurance Staff Attorneys. Where otherwise consistent with these rules,
lawyers who practice law as employees within a separate unit of a liability insurer
representing others pursuant to policies of liability insurance may practice under a name
that does not constitute a material misrepresentation. In order for the use of a name other
than the name of the insurer not to constitute a material misrepresentation, all lawyers in
the unit must comply with all of the following:


                (1) the firm name must include the name of a lawyer who has supervisory
        responsibility for all lawyers in the unit;



                                              F-40
                                                                                            Appendix D - Page 133
               (2) the office entry signs, letterhead, business cards, websites,
       announcements, advertising, and listings or entries in a law list or bar publication
       bearing the name must disclose that the lawyers in the unit are employees of the
       insurer;
               (3) the name of the insurer and the employment relationship must be
       disclosed to all insured clients and prospective clients of the lawyers, and must be
       disclosed in the official file at the lawyers’ first appearance in the tribunal in
       which the lawyers appear under such name;


               (4) the offices, personnel, and records of the unit must be functionally and
       physically separate from other operations of the insurer to the extent that would
       be required by these rules if the lawyers were private practitioners sharing space
       with the insurer; and


               (5) additional disclosure should occur whenever the lawyer knows or
       reasonably should know that the lawyer’s role is misunderstood by the insured
       client or prospective clients.


Comment


       A firm may be designated by the names of all or some of its members, by the
names of deceased members where there has been a continuing succession in the firm’s
identity, or by a trade name such as “Family Legal Clinic.” Although the United States
Supreme Court has held that legislation may prohibit the use of trade names in
professional practice, use of such names in law practice is acceptable so long as it is not
misleading. If a private firm uses a trade name that includes a geographical name such as
“Springfield Legal Clinic,” an express disclaimer that it is not a public legal aid agency
may be required to avoid a misleading implication. It may be observed that any firm
name including the name of a deceased partner is, strictly speaking, a trade name. The
use of such names to designate law firms has proven a useful means of identification.



                                             F-41
                                                                                            Appendix D - Page 134
However, it is misleading to use the name of a lawyer not associated with the firm or a
predecessor of the firm.


       Subdivision (a) precludes use in a law firm name of terms that imply that the firm
is something other than a private law firm. Two examples of such terms are “academy”
and “institute.” Subdivision (b) precludes use of a trade or fictitious name suggesting
that the firm is named for a person when in fact such a person does not exist or is not
associated with the firm. An example of such an improper name is “A. Aaron Able.”
Although not prohibited per se, the terms “legal clinic” and “legal services” would be
misleading if used by a law firm that did not devote its practice to providing routine legal
services at prices below those prevailing in the community for like services.


       Subdivision (c) of this rule precludes a lawyer from advertising under a nonsense
name designed to obtain an advantageous position for the lawyer in alphabetical directory
listings unless the lawyer actually practices under that nonsense name. Advertising under
a law firm name that differs from the firm name under which the lawyer actually
practices violates both this rule and subdivision (b)(1) ofthe prohibition against false,
misleading, or deceptive communications as set forth in subdivision (c)(1) of rule 4-7.2.


       With regard to subdivision (f), lawyers sharing office facilities, but who are not in
fact partners, may not denominate themselves as, for example, “Smith and Jones,” for
that title suggests partnership in the practice of law.


       All lawyers who practice under trade or firm names are required to observe and
comply with the requirements of the Rules Regulating The Florida Bar, including but not
limited to, rules regarding conflicts of interest, imputation of conflicts, firm names and
letterhead, and candor toward tribunals and third parties.


       Some liability insurers employ lawyers on a full-time basis to represent their
insured clients in defense of claims covered by the contract of insurance. Use of a name
to identify these attorneys is permissible if there is such physical and functional



                                             F-42
                                                                                            Appendix D - Page 135
separation as to constitute a separate law firm. In the absence of such separation, it
would be a misrepresentation to use a name implying that a firm exists. Practicing under
the name of an attorney inherently represents that the identified person has supervisory
responsibility. Practicing under a name prohibited by subsection (f) is not permitted.
Candor requires disclosure of the employment relationship on letterhead, business cards,
and in certain other communications that are not presented to a jury. The legislature of
the State of Florida has enacted, as public policy, laws prohibiting the joinder of a
liability insurer in most such litigation, and Florida courts have recognized the public
policy of not disclosing the existence of insurance coverage to juries. Requiring lawyers
who are so employed to disclose to juries the employment relationship would negate
Florida public policy. For this reason, the rule does not require the disclosure of the
employment relationship on all pleadings and papers filed in court proceedings. The
general duty of candor of all lawyers may be implicated in other circumstances, but does
not require disclosure on all pleadings.


RULE 4-7.114-7.10 LAWYER REFERRAL SERVICES


       (a) When Lawyers May Accept Referrals. A lawyer shall not accept referrals
from a lawyer referral service unless the service:


               (1) engages in no communication with the public and in no direct contact
       with prospective clients in a manner that would violate the Rules of Professional
       Conduct if the communication or contact were made by the lawyer;


               (2) receives no fee or charge that constitutes a division or sharing of fees,
       unless the service is a not-for-profit service approved by The Florida Bar pursuant
       to chapter 8 of these rules;


               (3) refers clients only to persons lawfully permitted to practice law in
       Florida when the services to be rendered constitute the practice of law in Florida;




                                            F-43
                                                                                           Appendix D - Page 136
               (4) carries or requires each lawyer participating in the service to carry
       professional liability insurance in an amount not less than $100,000 per claim or
       occurrence;


               (5) furnishes The Florida Bar, on a quarterly basis, with the names and
       Florida bar membership numbers of all lawyers participating in the service; and


               (6) furnishes The Florida Bar, on a quarterly basis, the names of all
       persons authorized to act on behalf of the service;


               (7) responds in writing, within 15 days, to any official inquiry by bar
       counsel when bar counsel is seeking information described in this subdivision or
       conducting an investigation into the conduct of the service or an attorney who
       accepts referrals from the service;


               (8) neither represents nor implies to the public that the service is endorsed
       or approved by The Florida Bar, unless the service is subject to chapter 8 of these
       rules; and


               (9) uses its actual legal name or a registered fictitious name in all
       communications with the public.;and


               (10) affirmatively states in all advertisements that it is a lawyer referral
       service.


       (b) Responsibility of Lawyer. A lawyer who accepts referrals from a lawyer
referral service is responsible for ensuring that any advertisements or written
communications used by the service comply with the requirements of the Rules
Regulating The Florida Bar, and that the service is in compliance with the provisions of
this subchapter.




                                             F-44
                                                                                           Appendix D - Page 137
        (c) Definition of Lawyer Referral Service. A “lawyer referral service” is:


                (1) any person, group of persons, association, organization, or entity that
        receives a fee or charge for referring or causing the direct or indirect referral of a
        potential client to a lawyer drawn from a specific group or panel of lawyers; or


                (2) any group or pooled advertising program operated by any person,
        group of persons, association, organization, or entity wherein the legal services
        advertisements utilize a common telephone number and potential clients are then
        referred only to lawyers or law firms participating in the group or pooled
        advertising program.


        A pro bono referral program, in which the participating lawyers do not pay a fee
or charge of any kind to receive referrals or to belong to the referral panel, and are
undertaking the referred matters without expectation of remuneration, is not a lawyer
referral service within the definition of this rule.


Comment


        Every citizen of the state should have ready access to the legal system. A person's
access to the legal system is enhanced by the assistance of a lawyer qualified to handle
that person's legal needs. Many of the citizens of the state who are potential consumers
of legal services encounter difficulty in identifying and locating lawyers who are willing
and qualified to consult with them about their legal needs. Lawyer referral services can
facilitate the identification and intelligent selection of lawyers qualified to render
assistance. However, because a potential for abuse exists, the participation of lawyers in
referral services must be regulated to ensure protection of the public.


        It is in the public interest that a person seeking the assistance of counsel receive
accurate information to select or be matched with counsel qualified to render the needed
services. Therefore, a lawyer should not participate in a lawyer referral service that



                                              F-45
                                                                                           Appendix D - Page 138
communicates misleading information to the public or that directly contacts prospective
clients about available legal services in a manner that constitutes impermissible
solicitation.


        One who avails oneself of legal services is well served only if those services are
rendered by a lawyer who exercises independent legal judgment. The division or sharing
of a fee risks the creation of an obligation that impairs a lawyer's ability to exercise
independent legal judgment. Therefore, the public interest usually compels the ethical
prohibition against the division or sharing of fees and that ethical prohibition should
likewise apply to the division or sharing of fees with a lawyer referral service. The
prohibition does not extend to the lawyer's paying a pre-arranged, fixed-sum participation
fee. Furthermore, the prohibition does not apply when the referring agency is a not-for-
profit service operated by a bona fide state or local bar association under the supervision
of and approved by The Florida Bar in order to ensure that such service fulfills the
public-interest purposes of a lawyer referral service and to ensure that the risk of
impairment of the lawyer's ability to exercise independent legal judgment is in that
circumstance minimal.


        It is in the public interest that a person receive legal services only from someone
who is qualified to render them. Lawyers should strive to prevent harm resulting from
the rendering of legal services by persons not legally qualified to do so. Therefore, a
lawyer should not participate in a lawyer referral service that refers clients to persons not
lawfully permitted to practice law in Florida when the services to be rendered constitute
the practice of law in Florida.


        The quasi-institutionalization of legal services by a lawyer referral service implies
that the service has screened the qualifications and financial responsibility of its
participating lawyers. That implication may be misleading and does not exist when a
prospective client directly selects a lawyer at arm's length. Therefore, it is in the public
interest that only lawyers who have established a certain amount of financial
responsibility for professional liability participate in a lawyer referral service.



                                              F-46
                                                                                           Appendix D - Page 139
Accordingly, a lawyer should participate in a lawyer referral service only if the service
requires proof of that financial responsibility.


       To enable The Florida Bar to fulfill its obligation to protect the public from
unethical or other improper conduct by those who practice law in Florida, The Florida
Bar must have available to it the identity of all lawyers participating in a lawyer referral
service. Therefore, a lawyer should participate in a lawyer referral service only if the
service furnishes The Florida Bar with the names of its participating lawyers.




                                             F-47
                                                                                           Appendix D - Page 140
                   APPENDIX G
WRITTEN DISSENT OF TASK FORCE MEMBER BILL WAGNER




                                              Appendix D - Page 141
MEMO TO:       Board of Governors of the Florida Bar

FROM:          Bill Wagner, Member
               Advertising Task Force, 2004

DATE:          January 26, 2005

SUBJECT:       DISSENT FROM FINAL REPORT OF TASK FORCE

             THE TASK FORCE PROPOSAL SHOULD BE ADOPTED

The members of the Task Force labored long and hard to bring to the Board well
considered amendments to the current Rules Regulating the Florida Bar (Rules).
Overwhelmingly the proposals improve the existing Rules. While individual members of
the Task Force may have preferred different results as applied to any particular proposed
change, and may have preferred more or less modification of the existing rules, the final
consensus reached dramatically improves on what exists today.

                            WHAT THIS DISSENT IS NOT

The author has participated in debate and numerous votes on issues presented to the Task
Force since its first meeting on March 9, 2004. For the most part these decisions had to
do with revision to specific currently existing Rules or proposals for additional Rules.
Some proposals were personally favored. Some were personally opposed. On some
issues, I voted on the prevailing side. On some I voted on the losing side. By far the
majority of decisions were made by consensus. This dissent is not for the purpose of
seeking to reverse any of those decisions now encompassed in the final report by the
Task Force to the Board of Governors.

     DISSENT FROM TASK FORCE POLICY FAVORING PIECEMEAL
  AMENDMENT OF EXISTING RULES RATHER THAN FULL REVIEW OF
   VIABILITY OF CURRENT RULES FORMAT AND BASIC GOVERNING
                          POLICIES

The first basis of this dissent is from the policy adopted by the Task Force, with apparent
approval of the Board and leadership, to presume that the basic concept of the need for
regulation of certain advertising, the method of providing such regulation, and the goals
to be accomplished by such regulation are fundamentally the same as when the Special
Commission on Advertising and Solicitation (on which I served) proposed the initial
Rules regulating advertising and solicitation to the Florida Supreme Court. That Court
adopted the original Rules by opinion on December 21, 1990.

The Special Commission, in 1989 and 1990, took extensive testimony from many
sources, gathered professional surveys and studies from many sources, and commissioned
a survey of the public and a separate survey of the judiciary. The purpose was to
determine to what extent advertising and solicitation should be prohibited or regulated in



                                            G-1
                                                                                       Appendix D - Page 142
order to protect the public and the justice system. The findings were influential in the
decisions made in writing those first Rules and were important in sustaining the
constitutional validly of those Rules in later litigation.

It would appear to a casual observer that “advertising” by lawyers is entirely different
today than it was in 1990. Such was the broad conclusion of the ABA in its extensive
survey of lawyer advertising. This has driven proposed amendments to the ABA Rules as
late as the year 2000 and to the Florida Rules as late as last year. There has been an
explosion of television and radio advertising since 1990. Yellow Page advertising has
grown to the level that in many cities pages devoted to lawyers exceed one hundred.
While there are vast differences of opinion about the impact of such advertising on the
public and the public’s perception of lawyers and the legal system, the Task Force made
no effort to obtain empirical evidence either to support retention of our present system of
the regulation of advertising or to support acceptance or rejection of any proposed
changes. Instead the Task Force relied almost exclusively upon the unsupported opinions
of the individual Task Force members. Those opinions, of necessity, were influenced to
a great deal by preconceived opinions regarding advertising itself. Those favoring
advertising tended to sense reasons to eliminate or reduce regulation. Those who
opposed advertising tended to sense that the need existed for more regulation.

This Task Force should have, once again, sought broader empirical input about the
current status of lawyer advertising and should have obtained detailed information as to
the effect of advertising in other states with no regulation or substantially less advertising.
In my opinion, the Florida Bar is left with little to guide its decisions except, again, the
individual Board members sense of what proposed regulation might accomplish. The
Florida Supreme Court will therefore potentially be left with insufficient information to
make informed decisions on the Boards recommendation if there is disagreement within
the Court, and there may well be an insufficient record to defend the final Rules if they
are challenged in litigation.

     DISSENT BASED ON FAILURE TO ESTABLISH GUIDELINES OR
 STANDARDS AGAINST WHICH LAWYER ADVERTISING CAN BE TESTED

Although there were frequent references in debate about our obligation to “protect the
public,” a lawyers “right to commercial free speech,” and the need to “avoid bringing
disrespect upon the bar or the court system,” these phrases were usually used in argument
to support or reject a proposed regulation, or, with some frequency, as an excuse to
support argument that a current regulation might be retained or rejected. While several
members of the Task Force urged development of guidelines before a review of existing
Rules, the Task Force instead broke into sub-committees, with each sub-committee
studying assigned sections of the current Rules to suggest changes. The ultimate success
or failure of a proposal was not dictated by actions taken at the sub-committees level. The
practical result was that many proposals for change were heard in depth only by a sub-
committee and were often not even mentioned at the full committee level. Each members
of the sub-committee brought a different and often varied to sub-committee meetings.
Later discussions of controversial sub-committee proposals at sub-committee and full



                                             G-2
                                                                                           Appendix D - Page 143
committee levels were necessarily affected by the viewpoints of those in attendances,
often far less than the full membership.

If the issue of the guidelines had been seriously considered, there might have been
considerable argument about the content of those guidelines, or the relative importance of
each guideline in making final decisions on the Rules. The proposal for adoption of
guidelines was presented on several occasions early in deliberation, but the suggestion
was either postponed or rejected. When the Citizens Council also suggested guidelines to
be followed by the Bar, the following draft guidelines were suggested for consideration.
The suggestion that they be considered was not adopted, and therefore the substance was
not considered. Had guidelines been adopted at an early stage, such guidelines could have
been considered by the Board to assist the Talk Force in completing the task assigned.

The following guidelines are presented to give the Board an idea of the type of guidelines
that could have, and should have, been adopted by the Task Force. The fact that any
reader may disagree with any or all of these guidelines, as written, emphasizes the need
for consensus on the goals of the regulation of advertising to assure that the final Rules
regulating advertising are lawful, efficient, and meaningful in their intended result.

                   Proposed Guidelines for Regulation of Advertising

                       1. Protection of the public from receipt of false,
           misleading, or deceptive information being provided by
           attorneys to the public for the purpose of obtaining
           employment by potential clients should be the primary goal of
           regulation.

                       2. To the extent possible advertising should provide
           information that will assist a prospective client in making a
           meaningful decision about the prospective clients need for
           legal services, and about which lawyer can best fulfill those
           needs.

                       3. The methods used to disseminate information
           about the availability of legal services should not contribute to
           disrespect for the justice system, including disrespect for the
           judiciary.

                      4. The methods used by an attorney to provide
           information about the availability of the Attorney’s services
           should not cause the public to have an inaccurate view of the
           legal system, of lawyers in general or of the legal profession in
           general.

                      5. The methods developed to enforce any
           regulation should not have an unreasonable economic impact



                                            G-3
                                                                                        Appendix D - Page 144
           upon attorneys who determine that they prefer to provide
           regulated information by methods that do not require
           expenditure of significant funds as compared to those who
           prefer to provide similar information by more expensive means
           (The fee for a newspaper classified ad should not be the same
           as for a three minute television commercial)

                       6. The rules should be shortened and simplified to
           the greatest extent possible, and should to the greatest extent
           possible establish “bright line” standards, violation of which
           will likely be clear so that violation will justify the conclusion
           that violation was either intentional or the result of gross
           incompetence, thereby allowing imposition of a harsh penalty.

While these guidelines cover most of the subjects that the Courts and the Bar have
formerly recognized as being important in consideration of the entire issue of advertising,
the Board cannot too long avoid discussion of another subject. It is probably important to
at some time discuss whether and if legal advertising is becoming a competitive factor
that will lead to severe restriction on the economic ability of sole practitioners and small
firms to compete with the financial capabilities of large firms. Expensive advertising
might allow large firms to capture a greater number of clients with matters which provide
major financial benefits to such advertising lawyers. It is the reverse of providing services
to the poor, or providing legal services for minor claims. Whether this is good or bad for
the public and for the justice system and the courts can be argued at length. Whether the
bar should or can do anything to affect the outcome likewise can be debated at length.
The issue cannot be ignored. They should not be ignored to the time when some
legitimate options that might impact the practice have disappeared. .


  DISSENT BASED ON FAILURE TO BE CONSISTENT IN TREATMENT OF
    DIFFERENT FORMS OF ADVERTISING, THUS CREATING POLICY
                          CONFLICTS

By using the present format and structure of the Rules as a starting point, and focusing on
proposed changes to specific Rules, the Task Force has created a number of policy
conflicts. Some major ones are outlined to focus on the difficulties.

                                   Levels of Regulation

Solicitation is prohibited (except when directed to certain people, such as persons with
whom the lawyer has a “prior professional relationship,” “former clients,” or if the
solicitation is defined as a communications “made at the request of that prospective
client.”)

All internet web presentations are considered “information provided on request” and
therefore are not regulated. Apparently, using Google to find “trial lawyers” is



                                            G-4
                                                                                        Appendix D - Page 145
considered a request for information and therefore advertisements found on the internet
do not need regulation.

Yellow Pages are minutely regulated and the Bar charges for filing such pages and
devotes considerable resources reviewing those advertisements to see if the content
violates, (or might violate) some Rule. The fact that the client makes the decision to open
the Yellow Pages to look for a lawyer instead of using Google unrealistically authorizes
the Bar to exercise a higher level of scrutiny. This does not make sense...

Direct mail advertising must be sent with warnings that the contents are advertising. The
fact that the potential client opens the envelope instead of throwing it in the trash is
argued to be somehow different from using Google, and therefore requires the Bar to
minutely examine and regulate the content of what is inside the envelope. One
requirement, that proposed contracts be marked “Don’t Sign” if in an envelope is not
apparently a needed requirement if the proposed contract is downloaded and printed from
the internet. This does not make sense.

While television and radio advertisements are closely regulated to avoid possible
misleading information, should the advertiser suggest to the viewer or listener that “full
information about our firm’s successes and ability can be obtained by going to our web
page, or calling for our brochure,” what is provided is basically unregulated. This does
not make sense.

I personally would eliminate all of the minute detailed regulation of all forms of
advertising. For the most part there is little if any evidence that the minute detailed
regulation in fact protects the public in any way. If the public needs protection from
potential misstatements by lawyers, it needs that protection whether the information is
sent by mail, placed on the internet, sent in a brochure, on given in person or explained in
person in an unsolicited discussion orchestrated by a lawyer lawfully under the Rules.
The minute details also provide means for creative advertising that may do more harm
then good. Bar involvement in enforcement of potentially meaningless minute rules
detracts from the respect for the Bar’s attempts to enforce violations that are truly
important to the public, the courts, and the justice system. Bar resources are misdirected.
But the point of this dissent is that all advertising should be equally and fairly regulated,
not just some.

                             Intrusiveness of Advertisement

Yellow page advertisements do not greatly intrude on the life of potential clients. They
can, for the most part, live their lives without seeing or reading a lawyer’s Yellow Page
advertisement.

Direct mail is more intrusive, but the potential client, at most, has to read the envelope
and then exercise a choice to dispose of the envelope without reading the contents. If
more information is thought needed, the potential client can further inquire by opening
the envelope.



                                             G-5
                                                                                         Appendix D - Page 146
Direct solicitation of a potential client by a lawyer with whom the potential client had
some “prior professional relationship,” (however defined) and even solicitation of a
family member of a lawyer can be very intrusive.

Television and radio advertising is the most intrusive. If one wishes to enjoy the radio or
a television show one must be subjected to the lawyer advertisements.

The Task Force fails to recognize this feature of the effect of advertising on the public
and the potential loss of respect for lawyers, the courts and the legal system by this forced
intrusion. All solicitation by lawyers of anyone should be banned. The Bar should
develop and enforce heightened regulation of television and radio advertisement to less or
eliminate the impact of such unwanted intrusion.

                          Providing Information to the Public

Initially the main justification by the Courts for allowing advertising by lawyers was to
permit the public to obtain information about the need for and availability of legal
services. Advertising was allowed to benefit the public.

Direct mail advertising (regulated) and brochures sent on request (unregulated) as well as
the internet (unregulated) have the highest prospect for providing in depth information to
a client. They also have a higher risk that the information is inaccurate.

Television and radio advertisements, especially the spot kind, provide the least possible
valuable information, are the most intrusive, and apparently are the stated reason for
alleged increase of public loss of respect for the law and lawyers. With proper proof, the
Courts might allow a complete ban. The important suggestion of one member that a
requirement for such advertising must be that it provides useful information was rejected
by the Task Force without debate on the hurried last day of meetings.

The list of “presumed” good advertising is interesting in what it includes as well as what
it excludes. .Likewise of interest is the list of information that a lawyer is precluded from
including in an advertisement. Finally, the list of “required” information is short indeed.
Measuring each listed item on a scale of what would be of value as distinguished from
what would be of little or no value to a prospective client would produce some interesting
results. Consider for instance the value of listing past or current membership on any
committee of the Florida against a proposal (rejected) to require a lawyer to disclose the
fact of lack of liability insurance.

                            Failure to Define Advertisement

I suggest that an advertisement is information prepared for mass distribution to potential
clients. Providing specific answers to specific questions from potential clients is not
advertising.




                                            G-6
                                                                                           Appendix D - Page 147
The Bar should not allow an advertisement to be totally unregulated just because a client
played some small part in receiving the information or because it is part of a mass
mailing to other lawyers..

A good start to eliminating this inconsistency would be for the Bar to define what
constitutes an advertisement. Whether an advertisement is regulated or not is separate
issue which should be squarely faced.

 DISSENT FOR CONTINUED LACK OF CLARITY IN RULE DEVELOPMENT

It is suggested that in reviewing the proposed amendments a person will more than once
be searching back and forth through the Rules in an effort to discern the basic intent and
meaning of a particular rule. Constant cross referencing must create confusion. The
members of the Bar cry out for simplicity and clarity. Little has been done to provide it.

An example is Rule 4-7.6(c) (1) that references compliance with another rule (Rule 4-7.2)
which Rule references as an exception selected subsections of Rule 4-7.1. Likewise
referenced are eight specific subdivisions of another rule (Rule 4-7.4) one of which
makes further reference to Rule 4-7.2.

It is claimed that this cross referencing is necessary for “clarity.” But proof of this claim
is needed. If a Rule is important, it should be clearly stated in almost every case rather
than require reference to all or parts of other rules.

Of course, an honest review of the necessity for many of these Rules, called for
elsewhere, might avoid many cross references by elimination of many of the Rules
referenced.

 DISSENT FOR FAILURE TO EMPHSIZE BASIC ADVERTISING STANDARD

While the Title to the applicable section of the Rules is “Information about Legal
Services” the most important Rule involved in protecting the public is not included
except by a vague reference. Proposed Rule 4-7.1(i) makes a vague reference to “the
general rule prohibiting a lawyer from engaging in conduct involving dishonesty, deceit
or misrepresentation.” The general rule” referred to is not cited but apparently is Rule 4-
8(c). Throughout discussion of proposed changes in the rules, the Task Force was
referred to “our other rules against cheating and stealing.” On one occasion, when staff
was asked to provide a reference to the rule, it took some effort for it to be found. For
lawyers who have never looked at the voluminous Rules since preparing for the bar
exam. They may look at the Rules only to prepare their advertisement. I suggest that the
point below needs emphasis.

I suggest this is perhaps sufficiently important in the case of advertising and solicitation
that an introductory Rule to the entire section be created to state:




                                             G-7
                                                                                          Appendix D - Page 148
           “In providing information to prospective clients about legal
           services or to a current or former client about new or
           additional services, a lawyer shall not by any means directly
           or indirectly provide information which involves dishonesty,
           fraud, deceit or misrepresentation.”

This is the single incidence in this dissent that I request consideration of a proposal for a
Rule which was considered and rejected by the Task Force.

                                        PROPOSAL

The Board of Governors should carefully consider the proposed amendments to the
current Rules proposed by the Task Force, and would probably be well advised not to
modify the proposal based on spur of the moment debate and discussion. The Board
should commend the Task Force, and especially its Chair and Vice Chair for work well
done on a difficult and complex problem. The Board should go further, however.
The Board should recommit to the Task Force or create a new Task Force with
instructions that it must:

(a) Collect empirical information and other valid evidence about the current status of
legal advertising and expected developments in the reasonable future.

(b) Develop guidelines for the determination of the need for and extent of regulation of
advertising by the legal profession. Tentative approval of the guidelines developed should
be sought from the Board to assist in the balance of the labors which follow.

(c) Evaluate the need for a complete revamp of current regulations governing legal
advertising, and if such need is determined, propose revised Rules.

While the charge to the new Task Force should emphasis a need for thoroughness and
reasonable efficiency in completing the task, there should be no artificial deadline for
accomplishing each stage. The Task Force should make regular reports to the Board as to
progress being made toward completion of the project .




                                             G-8
                                                                                          Appendix D - Page 149

				
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