End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Florida Legal Ethics
7.1:100 Comparative Analysis of Florida Rule
FL Rule 4-7.1 prohibits a lawyer from making or permitting to be made a false, misleading, deceptive or unfair communication about the lawyer or the lawyer's services. FL Rule 4-7.1(d) forbids any communication to contain a testimonial. Testimonials are deemed inherently misleading to a person untrained in the law. Comment, FL 4-7.1. The Comment to FL 4-7.1 lists several examples of communications that would be considered misleading.
7.1:200 Lawyer Advertising--In General
On December 17, 1999 the Florida Supreme Court adopted a substantial revision of the advertising rules. Amendments to Rules Regulating The Florida Bar—Advertising Rules, 762 So. 2d 392 (Fla. 1999). The Comment to FL Rule 4-7.1 provides: "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 & neon signs, or sound trucks fail to meet these standards and diminish public confidence in the legal system." The amended Florida advertising rules, however, go far beyond prohibiting such extreme examples of unprofessional advertising. Indeed, in his concurring opinion in Amendments to Rules Regulating The Florida Bar—Advertising Rules, 762 So. 2d 392 (Fla. 1999), Justice Overton stated that he believed the rules, as amended, go as far as possible under current law of the United States Supreme Court. See section 7.1:210 below for a discussion of United States Supreme Court case law on commercial speech and the regulation of lawyer advertising.
The board of governors has created the Standing Committee on Advertising (SCA) “to advise members of the Florida Bar on permissible advertising and solicitation practices.” FL Rule 15-1.1. The SCA is composed of 4 members of the Florida Bar and 3 nonlawyer members. FL Rule 15-2.1. The SCA publishes a helpful resource on lawyer advertising in Florida: the Handbook on Lawyer Advertising and Solicitation (6th ed. Mar. 2000, revised Aug. 2000). The handbook can be downloaded from the Florida Bar web site: The SCA, in addition to annually publishing the handbook, is responsible for screening and providing advisory opinions regarding all advertising that must be prefiled. In addition, the SCA is charged with recommending changes to the advertising rules. FL Rule 15-2.2.
Communications regarding lawyer advertising in Florida should be directed to: Standing Committee on Advertising c/o The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida, 32399-2300. The telephone number for the SCA is 850/561-5780.
Until 1976, commercial speech, defined as "expression related solely to the economic interest of the speaker and its audience," In re R.M.J., 455 U.S. 191, 204 (1982), was not entitled to First Amendment protection. However, beginning in 1976, the U.S. Supreme Court held that commercial speech was entitled to some protection, although not as much as noncommercial speech. Virginia State Bd. of Pharmacy v. Virginia Consumer Council, Inc., 425 U.S. 748 (1976). States may freely regulate commercial speech that concerns unlawful activity or is misleading. However, any regulation of other commercial speech must satisfy a three-part test. The regulation must: 1) relate to a substantial state interest; 2) directly and materially advance that interest; and 3) be narrowly drawn. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564-65 (1980).
In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court applied the commercial speech doctrine to attorney advertising and held that states cannot enact blanket prohibitions against such advertising. States can, however, regulate advertising. The extent of the permissible regulation has been defined through the years by a line of Supreme Court cases.
States may not prohibit:
(1) an attorney from publishing in a newspaper a truthful advertisement about the availability and terms of routine legal services. Bates v. State Bar of Arizona, 433 U.S. 350 (1977);
(2) solicitation by an attorney who, in furtherance of political/ideological goals rather than for pecuniary gain, advises a lay person of legal rights and that free legal assistance is available from a nonprofit organization with which the attorney is affiliated. In re Primus, 436 U.S. 412 (1978).
(3) attorney advertisement which lists practice areas and jurisdictions to which the attorney is admitted. Nor can states prohibit the mailing of announcement cards to people other than lawyers, clients/former clients & friends, although the state could require such mailings to be clearly marked "advertisement." In re R.M.J., 455 U.S. 191 (1982).
(4) an attorney from soliciting legal business through a print advertisement containing truthful/nondeceptive information and advice regarding the legal rights of potential clients. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985).
(5) the use of accurate/nondeceptive illustrations in advertisements. Zauderer.
(1) reasonably restrict the time, place and manner of solicitation by attorneys. In re Primus, 436 U.S. 412 (1978).
(2) prohibit in-person solicitation of a client for pecuniary gain under circumstances likely to pose dangers the state has a right to prevent. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).
(3) require advertisements which refer to contingent fee arrangements to disclose that clients may be responsible for payment of costs even in the absence of a recovery. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985).
(4) ban direct-mail solicitation of victims and their relatives for 30 days after an accident or disaster. Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995).
FL Rule 4-7.2 prohibits "false, misleading, deceptive, or unfair communication about the lawyer or the lawyer's services." The Comment contains several examples of statements considered to be misleading: (1) an advertisement that states that all the firm's lawyers are juris doctors, but does not say that a juris doctorate is a law degree and not a medical degree and that most firms in the United States can make the same claim; (2) a statement that a lawyer is a member of the Florida Bar, without listing other jurisdictions to which the lawyer is admitted, because such a statement implies a special qualification not held by all other Florida lawyers. Comment FL Rule 4-7.2.
In Mason v. Florida Bar, 208 F. 3d 952 (11th Cir. 2000), The Florida Bar had found misleading a statement in an advertisement that a lawyer was "'AV' Rated, the Highest Rating Martindale-Hubbell National Law Directory." The Bar did not object to the use of the "AV" rating, but objected to the use of the phrase "the highest rating" as misleading because the general public is unfamiliar with Martindale-Hubbell and the criteria used to rate lawyers. The Eleventh Circuit found the Bar's application of Rule 4-7.2(j) in that case to be unconstitutional. However, the court rejected a void-for-vagueness facial challenge to the rule. The court found that the language of the rule was not vague. Additionally, the court found that "the availability of advisory opinions to gauge the application of Rule 4-7.2(j) to specific situations bolsters its validity." Id. at 959.
FL Rule 4-7.2(b)(1)(E) prohibits endorsements or testimonials because they are inherently misleading. "Potential clients are likely to infer from the testimonial that the lawyer will reach similar results in future cases." Comment FL Rule 4-7.2.
Statements comparing a lawyer's services with other lawyers' services are prohibited unless the comparison can be factually substantiated. FL Rule 4-7.2(b)(1)(D). Thus, a lawyer or law firm cannot claim to be "the best," "one of the best," or "one of the most experienced." Comment FL Rule 4-7.2.
7.2:100 Comparative Analysis of Florida Rule
7.2:200 Permissible Forms of Lawyer Advertising
Lawyers are permitted to advertise in public media, including but not limited: 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 communications. FL Rule 4-7.1(a).
7.2:300 Retaining Copy of Advertising Material
Lawyers are required to keep a copy of each advertising communication for three years. FL Rule 4-7.4(b)(2)(c).
7.2:400 Paying to Have Services Recommended
Lawyers may not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay for permitted advertising, may pay the usual charges of a lawyer referral service or other legal service organization, and may purchase a law practice. FL Rule 4-7.2(c)(8).
7.2:500 Identification of a Responsible Lawyer
FL Rule 4-7.2 requires all advertisements and written communications to contain the name of at least one lawyer or the lawyer referral service responsible for their content.
7.3:100 Comparative Analysis of Florida Rule
FL Rule 4-7.4 is substantially different from MR 7.3. The Florida rule specifically defines the term "solicit," and flatly forbids targeted direct mail solicitation of personal injury or wrongful death clients within 30 days of the accident or disaster that precipitated the communication, a prohibition upheld in Florida Bar v. Went For It, Inc., 115 S.Ct. 2371, 132 L. Ed. 2d 541 (1995). FL Rule 4-7.4(b)(2) contains specific and lengthy requirements as to the contents and form of direct communications with prospective clients, requires the lawyer to retain a copy of each such communication for a period of three years, and requires the lawyer to disclose how the lawyer obtained the information prompting the communication.
DR 2-104(A) prohibits a lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action may not accept employment resulting from that advice, except under specified circumstances.
7.3:200 Prohibition of For-Profit In-Person Solicitation
The United States Supreme Court has held that states cannot prohibit in-person solicitation by a lawyer who, for political or ideological reasons, advises a client that free legal services are available from a nonprofit organization with which the lawyer is associated. In re Primus, 436 U.S. 412 (1978). However, states may ban all in-person solicitation of potential clients where the attorney is motivated by pecuniary gain. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).
Florida has an extensive rule governing solicitation of potential clients. The rule, as permitted by the U.S. Supreme Court in Ohralik, prohibits in-person solicitation, motivated by pecuniary gain, except of people with whom the lawyer has a family or prior professional relationship. FL Rule 4-7.4(a).
In a classic case of "ambulance-chasing," a lawyer was disbarred for soliciting business from a stranger hospitalized with brain damage after a motorcycle accident, falsely telling the nurse on duty that he was the patient's lawyer and lying to the patient's brother that he had been sent by police at the scene of the accident. Florida Bar v. Weinstein, 624 So. 2d 261 (Fla. 1993). The court viewed Weinstein's conduct as "one of the more odious infractions that a lawyer can commit" and said that "his conduct brings his profession into disrepute and reduces it to a caricature." Id. at 262. In 1989, the Supreme Court of Florida had noted that "[i]n recent years, perhaps no single aspect of the practice of law has received more public criticism than the unethical solicitation of clients." Florida Bar v. Stafford, 542 So. 2d 1321 (Fla. 1989).
Florida Statutes section 877.02 provides:
(1) It shall be unlawful for any person or her or his agent, employee or any person acting on her or his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal service, or to make it a business to solicit or procure such business, retainers or agreements; provided, however, that nothing herein shall prohibit or be applicable to banks, trust companies, lawyer reference services, legal aid associations, lay collection agencies, railroad companies, insurance companies and agencies, and real estate companies and agencies, in the conduct of their lawful businesses, and in connection therewith and incidental thereto forwarding legal matters to attorneys at law when such forwarding is authorized by the customers or clients of said businesses and is done pursuant to the canons of legal ethics as pronounced by the Supreme Court of Florida.
(2) It shall be unlawful for any person in the employ of or in any capacity attached to any hospital, sanitarium, police department, wrecker service or garage, prison or court, or for a person authorized to furnish bail bonds, investigators, photographers, insurance or public adjusters, to communicate directly or indirectly with any attorney or person acting on said attorney's behalf for the purpose of aiding, assisting or abetting such attorney in the solicitation of legal business or the procurement through solicitation of a retainer, written or oral, or any agreement authorizing the attorney to perform or render legal services.
§ 877.02(1) & (2), Fla. Stat. (2001).
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In Smith v. Bateman Graham, P.A., 680 So. 2d 497 (Fla. 1st DCA 1996), the court held that a law firm had no standing to enforce, against a departing member of the firm, the rule prohibiting written solicitation of prospective clients who have legal representation.
7.3:300 Regulation of Written and Recorded Solicitation
The United States Supreme Court has held that states may not impose a blanket ban on written solicitation of potential clients. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988). States may, however, impose a 30-day blackout period on written solicitations of accident/disaster victims and their families. Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995).
In Florida, written solicitations are subject to detailed requirements and must be filed with the standing committee on advertising either before or at the same time as mailing, as provided by Rule 4-7.5, and a copy retained for three years. FL Rule 4-7.4(b)(2)(B).
A lawyer may not solicit business from a person the lawyer knows does not want to receive a solicitation, FL Rule 4-7.4(b)(1)(C), or knows or reasonably should know is (1) already represented by a lawyer, FL Rule 4-7.4(b)(1)(B), or (2) in a physical, emotional or mental state which makes it unlikely that the person would use reasonable judgment in hiring a lawyer, FL Rule 4-7.4(b)(1)(F), and every written solicitation must begin with the following sentence: "If you have already retained a lawyer for this matter, please disregard this letter." FL Rule 4-7.4(b)(2)(G). And the provision upheld by the Supreme Court in Went for It prohibits written solicitation of accident or disaster victims or their families for a period of 30 days following the accident or disaster. FL Rule 4-7.4(b)(1)(A).
Written solicitations must provide information regarding the lawyer's or the law firm's qualifications, FL Rule 4-7.4(b)(2)(E), and the lawyer's plan to refer the case to another lawyer. FL Rule 4-7.4(b)(2)(I). The solicitation must also state how the lawyer obtained information about the recipient's legal problems. FL Rule 4-7.4(b)(2)(J). This requirement is designed to avoid misleading the recipient into believing that the lawyer has specific knowledge about the particular legal problem. Comment, FL Rule 4-7.4.
All written solicitations must be: (1) marked "advertisement" in red on each page and the envelope, FL Rule 4-7.4(b)(2)(A); (2) on letter-sized paper, not resembling legal documents, FL Rule 4-7.4(b)(2)(H); and (3) mailed regular U.S. mail. FL Rule 4-7.4(b)(2)(C). These requirements appear to address concerns that recipients may be frightened by receipt of legal mail and reluctant to discard it for fear of legal repercussions. See Comment, FL Rule 4-7.4. Any contract for representation sent with the solicitation must be marked "SAMPLE" in red ink in a type size larger than the largest type used in the contract and the words "DO NOT SIGN" must appear in the signature line. FL Rule 4-7.4(b)(2)(F). The solicitation may not state that it has received approval from the Florida Bar. FL Rule 4-7.4(b)(2)(D).
Written solicitations may not involve coercion, duress, fraud, overreaching, harassment, intimidation or undue influence, FL Rule 4-7.4(b)(2)(D), nor contain false, fraudulent, misleading, deceptive or unfair statements. FL Rule 4-7.4(b)(2)(E).
Florida recently adopted a rule governing advertising on web sites and through email. FL Rule 4-7.6. Web sites and home pages accessed via the Internet must disclose the jurisdiction in which the lawyer or members of the law firm are licensed to practice law and one or more bona fide office locations of the lawyer or law firm. Web sites and home pages are considered information provided by request and are governed by FL Rule 4-7.9. Such information is accessed upon the viewer's initiative. Comment, FL Rule 4-7.6. All other computer-accessed advertisements must comply with the requirements of Rule 4-7.2. FL Rule 4-7.6(d). "[C]ommunications 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." Comment, FL Rule 4-7.6. The rule does not apply when someone other than the lawyer gratuitously links to, or comments on, a lawyer's web site. Comment, FL Rule 4-7.6.
Email communications sent to a prospective client for purposes of obtaining professional employment must comply with FL Rule 4-7.4(b)(1) and 4-7.4(b)(2)(A), (E), (G), (H), (J) & (K) and must disclose one or more bona fide office locations of the lawyer or lawyers who will perform the advertised services. FL Rule 4-7.6(c). The subject line of each such email must state "legal advertisement." FL Rule 4-7.6(c)(3). Such emails are "functionally comparable to direct mail communications and thus are governed by similar rules." Comment, FL Rule 4-7.6.
7.3:400 Disclaimers for Written and Recorded Solicitation
All advertisements are required to 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." FL Rule 4-7.3(b). Lawyer referral service advertisements are also required to contain a 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." FL Rule 4-7.3(b). An abbreviated version is permitted for outdoor advertisements: "Before choosing a lawyer, ask for written information about the lawyer's legal qualifications and experience." FL Rule 4-7.3(b). The disclosures must appear in legible type no smaller than one-fourth of the size of the largest type otherwise appearing in the advertisement. FL Rule 4-7.3(b). The disclosures are not required in public print media that contains no illustrations and no information other than that listed in FL Rule 4-7.2(c)(10), or in written communications sent in compliance with FL Rule 4-7.4.
7.3:500 Solicitation by Prepaid and Group Legal Services Plans
7.4:100 Comparative Analysis of Florida Rule
FL Rule 4-7.2(c) recognizes that Chapter 6, Rules Regulating The Florida Bar, sets forth standards for "certified" lawyers in certain areas of legal practice, and permits such lawyers to set forth those facts in communications about the lawyer's services. The Florida rule does not expressly permit the designation "Admiralty," "Proctor in Admiralty," or any substantially similar designation.
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7.4:200 Regulation of Claims of Certification and Specialization
A lawyer may not state or imply that the lawyer is a specialist in a particular field of law unless the lawyer is certified pursuant to Chapter 6, Rules Regulating The Florida Bar or by a specialty certification program accredited by the American Bar Association. FL Rule 4-7.2(c)(3).
7.5:100 Comparative Analysis of Florida Rule
FL Rule 4-7.10 permits a lawyer to practice under a trade name if the name is not deceptive and does not imply a connection with a government agency or public or charitable legal services organization, does not imply the firm is something other than a private law firm, and is otherwise in compliance with FL Rule 4-7.2(b)(1). The rule also permits the lawyer to use the term “legal clinic” or “legal services” in conjunction with the lawyer’s name if the practice is devoted to providing routine legal services at less than the prevailing rate in the community. FL Rule 4-7.10(c) permits a lawyer who practices under a trade name to use that name in advertisements.
DR 2-102(B) prohibits a lawyer from practicing under a trade name.
7.5:200 Firm Names and Trade Names
Despite the fact that the U.S. Supreme Court has upheld a state prohibition of the use of trade names by optometrists, where such names had been used in deceptive and misleading ways, Friedman v. Rogers, 440 U.S. 1 (1978), the Florida Supreme Court rejected a prohibition on the use of trade names. The court found the existing prohibition against misleading trade names sufficient to protect against perceived abuses. Amendments to Rules Regulating The Florida Bar—Advertising Rules, 762 So. 2d 392 (Fla. 1999). The Florida Rule provides that a lawyer may practice under a trade name if the name: (1) is not deceptive; (2) does not imply a connection with a government agency or with a public or charitable legal services organization; (3) does not imply that the firm is something other than a private law firm; and (4) does not otherwise violate rule 4-7.2(b)(1). FL Rule 4-7.10(b).
7.5:300 Law Firms with Offices in More Than One Jurisdiction
A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm must indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. FL Rule 4-7.10(d).
7.5:400 Use of the Name of a Public Official
The name of a lawyer holding a public office may 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. FL Rule 4-7.10(e).
7.5:500 Misleading Designation as Partnership, etc.
Lawyers may state or imply that they practice in a partnership or authorized business entity only when that is the fact. FL Rule 4-7.10(f).