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Florida Supreme Court issues revised opinion concerning lawyer advertising rule changes originally adopted in January 2007, and denies Bar's motion for reconsideration [Added 12/24/07] The Florida Supreme Court issued a revised opinion regarding the lawyer advertising rule changes that were originally adopted by the Court effective January 1, 2007 (click here for a copy of the Court's original opinion). (A sunEthics.com summary of those rule changes appears on the "Rules and Opinions" page of the sunEthics.com "News Archive" section and can also be accessed by clicking here.) The Florida Bar had filed a Motion for Reconsideration in this matter. The Bar sought clarification as to the effect of several aspects of the Court's original opinion. Among other things, in light of the rules as amended by the Court the Bar has asked the Court: whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request. The Court denied the Bar's Motion for Reconsideration but issued the revised opinion, which contained 2 key features. First, the Court granted the Bar's request to retain existing subdivision (d) of Rule 4-7.8. "[T]he Bar proposed amendments to rule 4-7.8 (Exemptions From the Filing and Review Requirement), which would have included deletion of existing subdivision (d) (a communication mailed only to existing clients, former clients, or other lawyers is exempt from the filing requirements of rule 4-7.7). However, the Bar subsequently filed a motion requesting that the Court retain subdivision (d) in the rules, while the Bar studied issues raised by related rule 4-7.1 (General). Thus, in light of related rule 4-7.1, we modify the proposal to maintain existing subdivision (d) in rule 4-7.8." Second, the revised opinion contained a lengthy opinion by Chief Justice Lewis in which he concurred and dissented. He vigorously dissented from the Court's decision to amend Rule 4-7.2 to permit board certified lawyers to refer to themselves in advertising as "experts." He observed: "First, under the commercial-speech doctrine, this Court remains free to restrain deceptive or misleading attorney advertising. Second, 'specialist' and 'expert' are not synonymous; in fact, they are qualitatively different. Furthermore, claims of 'expert' status are inherently misleading. Third, the 'expert' amendments have 'flown under the radar' and have not been adequately or appropriately debated or briefed. Fourth and finally, my view is consistent with both the majority approach across the country, and with Florida’s regulation of another group of certified specialists – board-certified physicians." The Court's opinion stated that "[t]he amendments shall become effective on February 1, 2008, at 12:01 a.m." In re: Amendments to Rules Regulating The Florida Bar -- Advertising Rules, ___ So.2d ___ (Fla., SC05-2194, 12/20/2007) (revised opinion), 2007 WL 4440364. |
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