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RULE-BY-RULE ANALYSIS OF ACTION TAKEN BY
FLORIDA SUPREME COURT IN ITS OPINION OF NOVEMBER 2, 2006, AMENDING FLORIDA'S
LAWYER ADVERTISING RULES (EFFECTIVE JANUARY 1, 2007)
The following analysis of the Florida
Supreme Court's November 2, 2006, decision on the Bar's proposed changes to the
Florida lawyer advertising rules was provided by Florida Bar Ethics Counsel
Elizabeth Clark Tarbert:
(Old) Rule 4-7.1
Adds new subdivision (b) stating that subchapter 4-7 applies to Florida bar
members who advertise in Florida passed by BoG 4/8/05; adopted by court
11/2/06
Adds new subdivision (c) stating that subchapter 4-7 applies to out of state
lawyers who advertise in Florida to provide authorized legal services passed
by BoG 4/8/05; adopted by court 11/2/06
Adds new subdivision (e) stating that subchapter 4-7 does not apply to
communications between lawyers passed by BoG 4/8/05; court declined to
adopt 11/2/06
Adds new subdivision (f) stating that subchapter 4-7 does not apply to
communications between a lawyer and the lawyers own family members passed by
BoG 4/8/05; adopted by court 11/2/06
Adds new subdivision (g) stating that subchapter 4-7 does not apply to
communications between a lawyer and the lawyers own current and former clients
passed by BoG 4/8/05; court declined to adopt 11/2/06
Adds new subdivision (h) stating that subchapter 4-7 does not apply to
communications at a prospective clients request passed by BoG 4/8/05; adopted
by court 11/2/06
Adds new subdivision (i) stating that the general prohibition against conduct
involving dishonesty or misrepresentation applies to all communications by a
lawyer passed by BoG 4/8/05; adopted by court 11/2/06
Adds commentary that the lawyer advertising rules do not apply in situations
addressed by proposed subdivisions (e) through (i) above passed by BoG; ;
court declined to adopt and court further amended the commentary to remove a
reference to lawyer-to-lawyer communication being exempt from the rules, leaving
only lawyer-lawyer's own family member communication being exempt from the rules
11/2/06
(Old) Rule 4-7.2
Reorganizes rule to first set forth required information in proposed subdivision
(a), then permissible content in proposed subdivision (b), then general
regulations in proposed subdivision (c) passed by BoG 4/8/05; adopted by court
11/2/06
Deletes 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 passed by BoG passed by BoG 4/8/05; adopted by court
11/2/06
Divides permissible content 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)] passed by BoG 4/8/05; adopted by court 11/2/06
Adds to 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)] passed by BoG 4/8/05; adopted by court 11/2/06
Consolidates and deletes redundant information in the prohibition against
misleading information in subdivision (b)(2) [proposed subdivision (c)(1)]
passed by BoG 4/8/05; adopted by court 11/2/06
Deletes references to "unfair" advertising in subdivision (b)(2)(E) and comment
passed by BoG 4/8/05; adopted by court 11/2/06
Deletes references to statements that are "likely to create an unjustified
expectation about results the lawyer can achieve" in subdivision (b)(1)(B)
passed by BoG 4/8/05; adopted by court 11/2/06
Adds prohibition against statements that "promise results" in proposed
subdivision (c)(1)(H) passed by BoG 4/8/05; amended by BoG 6/3/05 (from
"guarantee" to "promise"); adopted by court 11/2/06
Consolidates the prohibitions against misleading illustrations and misleading
visual and verbal portrayals in proposed subdivision (c)(3) [existing
subdivisions (b)(3) and (c)(1)] passed by BoG 4/8/05; adopted by court 11/2/06
Deletes as redundant the prohibition against requiring all ads to conform to the
requirements of advertising areas of practice in subdivision (c)(2) passed by
BoG 4/8/05; adopted by court 11/2/06
Adds a prohibition against using terms such as "expert" or "expertise" unless
the lawyer is board certified in proposed subdivision (c)(5) and comment
[existing subdivision (c)(3)] passed by BoG 4/8/05; adopted by court 11/2/06
Deletes requirement that required information appear in type size at least one
quarter the size of the largest type used in the advertisement, leaving the
requirement that all required information be clearly legible in proposed
subdivision (c)(10) [existing subdivision (c)(11)] passed by BoG 4/8/05;
adopted by court 11/2/06
Reorganizes general regulations to move all issues regarding content to the
beginning of the rule and other prohibitions to the end of the rule, renumbering
provisions of the rule passed by BoG 4/8/05; adopted by court 11/2/06
(Old) Rule 4-7.3
Deletes the required hiring disclosure in subdivision (b) and comment passed
by BoG 4/8/05; adopted by court 11/2/06
(Old) Rule 4-7.4
Adds the term "unsolicited" to "written communication" in subdivision (b) title
and subdivision (b)(1) passed by BoG 4/8/05; adopted by court 11/2/06
Deletes prohibition against "unfair" statements or claims in subdivision
(b)(1)(E) passed by BoG 4/8/05; adopted by court 11/2/06
Moves record retention requirement provision from subdivision (b)(2)(C) to 4-7.7
passed by BoG 4/8/05; adopted by court 11/2/06
Adds definition of "prior professional relationship" in the comment passed by
BoG 4/8/05; court declined to adopt 11/2/06
Adds commentary addressing the standard to be used on the required disclosure of
how the lawyer obtained the information prompting an unsolicited direct mail in
a specific matter in the comment passed by BoG 4/8/05; adopted by court
11/2/06
(Old) Rule 4-7.5
Deletes requirement that a nonlawyer spokesperson provide an affirmative
disclosure that the person is not a lawyer and not a member of the firm except
in ads where it is unclear from the context that the spokesperson is not a
lawyer in subdivision (b)(2)(B) and comment passed by BoG 4/8/05; court
declined to adopt 11/2/06
Deletes provision defining "member" of a law firm in the comment as obsolete in
light of prior changes to the rule passed by BoG 4/8/05; adopted by court
11/2/06
(Old) Rule 4-7.6
court declined to adopt any changes to this rule 11/2/06, which may
necessitate a motion for clarification because changes to other rules have
affected this rule
(Old) Rule 4-7.7
Requires prior review of television and radio advertisements only passed by
BoG 4/8/05; adopted by court 11/2/06
Changes references to the Standing Committee on Advertising or the committee to
"The Florida Bar" throughout the rule passed by BoG 4/8/05; adopted by court
11/2/06
Adds that filings must be made to Florida Bar headquarters address in
subdivision (a) passed by BoG 4/8/05; adopted by court 11/2/06
Adds that a lawyer cannot obtain an advisory opinion regarding communications
that are not subject to subchapter 4-7 in subdivision (a) passed by BoG
4/8/05; adopted by court 11/2/06
Adds that a complete filing must include a printed copy of all text used in the
ad in subdivision (b)(3); passed by BoG 7/11/05; adopted by court 11/2/06
Adds that a complete filing must include an accurate English translation if the
ad appears in another language in subdivision (b)(4) passed by BoG 4/8/05;
adopted by court 11/2/06
Makes findings of compliance by The Florida Bar binding on The Florida Bar in
grievance proceedings, except where misrepresentations are not apparent on the
face of the ad in subdivision (f) [new subdivisions (a)(1)(F) and (1)(2)(F)]
passed by BoG 4/8/05
Adds provision regarding retention of direct written communications to
subdivision (h) [new subdivision d) passed by BoG 4/8/05; adopted by court
11/2/06
Adds commentary regarding a safe harbor to encourage lawyers to file their ads
and receive approval in advance of using the ads in the comment passed by BoG
4/8/05; adopted by court 11/2/06
(Old) Rule 4-7.8
Adds that a public service announcement may contain any permissible content of
advertising in subdivision (b) passed by BoG 4/8/05; adopted by court 11/2/06
Deletes as redundant that communications sent only to existing clients, former
clients or other lawyers are exempt from filing in subdivision (d) passed by
BoG 4/8/05; adopted by court 11/2/06 [may be subject of motion for
clarification in light of the court's other decisions relating to communications
between lawyers and existing clients, former clients and other lawyers]
Deletes as redundant that communications at a prospective clients request are
exempt from filing in subdivision (e) passed by BoG 4/8/05; adopted by court
11/2/06
(Old) Rule 4-7.9
Deletes rule in its entirety as redundant in light of proposed 4-7.1(h) passed
by BoG; adopted by court 11/2/064/8/05
(Old) Rule 4-7.10
Renumbers rule to 4-7.9, but no substantive changes passed by BoG 4/8/05;
adopted by court 11/2/06
(Old) Rule 4-7.11
Renumbers rule to 4-7.10 passed by BoG 4/8/05; adopted by court 11/2/06
Adds that lawyer referral services must affirmatively state that they are lawyer
referral services in proposed subdivision (a)(10) passed by BoG 4/8/05;
adopted by court 11/2/06
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