Florida CLE Diversity Controversy
The Florida Supreme Court attracted national attention when it recently sua sponte changed the CLE programming requirements such that The Florida Bar cannot approve CLE programming and Florida lawyers cannot receive CLE credits for attendance at any program for which there was a diversity requirement or quota pertaining to the selection of the panelists.
The Court did welcome comments about the new requirement and has received quite a few asking that the requirement be modified or rescinded. The comment period has been extended until July 15th after which, we will standby to see if the Court will change its stance. See the Court Order and filed comments here.
Committee to Improve the Delivery of Legal Services
In what some might say is a more enlightened Florida happening, The Florida Bar’s Special Committee to Improve the Delivery of Legal Services filed its Final Report on June 28th and is recommending that a regulatory sandbox be established and referred to as the Law Practice Innovation Laboratory Program or the Lab. It also recommended that Rule 4-5.4 be amended to allow nonlawyers to have a noncontrolling interest in law firms but continue to prohibit passive investment in law firms by nonlawyers. Significantly, for the regulatory sandbox or Lab, Rule 4-5.4 restrictions on sharing fees with nonlawyers would be eliminated. (See prior coverage of Utah and CA here.)
In another progressive move, the Committee recommends greatly streamlining the advertising rules to focus on a more succinct rule that focuses on a prohibition on false and misleading advertising and eliminates much of the tedious and outdated language in the Florida attorney advertising rules. (I am gratified to see that the Committee took its lead in part from the 2015 APRL and 2018 ABA reports, both of which I participated in writing.)
The Committee also addresses the use of nonlawyers to provide limited legal services. The Committee “voted to approve in concept a Limited Assistance Paralegal Pilot Program (the pilot program) to allow qualified Florida Registered Paralegals (FRP) to provide certain limited services to some clients of a law firm or legal aid organization.” The idea would be initially tested in the Lab.
The Committee proposal are presented as approved “in concept” and the Committee asks the Court to direct the Committee to next prepare a Lab Program within six months for the Court’s consideration. Exciting progress, but not yet time to schedule time to play in the sand.
Two more Florida Rules happenings…
Prohibition on Misleading Advertising
A proposed Florida amendment to Rule 4-1.18 were approved by the Florida Board of Governors and filed with the Florida Supreme Court in October 2020 by The Florida Bar. The amendment is designed to address and prohibit the use of another lawyer or law firm’s name to attract clients. The concept originated in a proposed opinion that dealt with buying key words and meta data using the name of a competitor to drive that competitor’s potential clients to the purchaser’s website. The opinion was ultimately abandoned as the technology evolved.
The amendment reads: “A statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to knowingly contact a different lawyer or law firm.”
It is interesting that the proposal remains pending as Ohio Board of Professional Conduct recently released an opinion that advises that the “purchase and use of a competitor lawyer’s or law firm’s name as a keyword for advertising is an act that is designed to deceive an Internet user.” The Board explained, “The advertising lawyer is attempting to deceive the consumer into selecting the advertising lawyer or law firm’s website, as opposed to the intended lawyer or law firm.”
The Ohio Board concluded that such conduct not only implicates its version of 8.4(c) that prohibits misrepresentation, but also may violate the rules that govern a lawyer’s fitness to practice law and fundamental obligations of integrity, trustworthiness, fairness to others, and respect for the rights of others.
Let’s see if the Florida Supreme Court agrees…
Amendment to the Confidentiality Rule for Limited Negative Online Review Response
Lawyers are often frustrated (and sometimes get in trouble) when attempting to respond to clients’ negative online reviews. The duty of confidentiality prohibits lawyers from revealing any client information regardless of what the client may say about the lawyer. (Lawyer can reveal confidential information if a client files suit against the lawyer, but the internet is not considered to be a tribunal in the context of the confidentiality rules.)
The proposed amendment allows a lawyer to respond to specific allegations written on the internet by former client suggests that the lawyer has engaged in criminal conduct.
The proposed amendment and proposed to new comment to Rule 4-1.6 Confidentiality reads as follows:
(c) When Lawyer May Reveal Information. A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to:
(7) respond to specific allegations published via the internet by a former client (e.g., a negative online review) that the lawyer has engaged in criminal conduct punishable by law.
The new proposed comment:
Subdivision (c)(7) allows a lawyer to respond to specific allegations published via the internet by a former client (e.g., a negative online review) that the lawyer has engaged in criminal conduct punishable by law. However, under subdivision (f), even when the lawyer is operating within the scope of the (c)(7) exception, disclosure must be no greater than the lawyer reasonably believes necessary to refute the specific allegations.
The amendment was unanimously approved by both The Florida Bar’s Professional Ethics Committee and the Board of Governors Review Committee on Professional Ethics. Next stop, approval by the Board of Governors and then on to the Florida Supreme Court.
Another “stay tuned” situation.
