Navigating Ethics and Advertising

Episode Notes

Transcript

The Florida Bar Podcast

Navigating Ethics and Advertising

12/27/2017

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Christine Bilbrey: Hello and welcome to The Florida Bar Podcast brought to you by The Practice Resource Institute on Legal Talk Network. We are so glad you are joining us. This is Christine Bilbrey. I am the Senior Practice Management Advisor at PRI and one of the hosts for today’s show, which is being recorded from our offices in Tallahassee, Florida.

Karla Eckardt: Hello. I am Karla Eckardt, I am a Practice Management Advisor at the Florida Bar’s Practice Resource Institute and a co-host of today’s podcast.

Our goal at PRI is to assist Florida attorneys with running the business side of their law practices. We will be focusing on a different topic each month and we will carry the theme through our newsletter and website with related tech and tip articles.

Christine Bilbrey: So this month at PRI our topic is The Florida Bar Ethics and Advertising Department, and joining us today is attorney Elizabeth Tarbert. Elizabeth has been ethics counsel for The Florida Bar since 1997 where she provides opinions to members of the Florida Bar and advises the Professional Ethics Committee.

Elizabeth is a double Gator and was previously an Assistant Public Defender. While at the Defense Logistics Agency in Philadelphia she worked in a Special Fraud Remedies Unit assisting in the investigation and prosecution of government contractors.

Welcome to the show, Elizabeth.

Elizabeth Clark Tarbert: Thank you.

Christine Bilbrey: So, Elizabeth, tell our listeners a little bit about yourself and what you do here at the Bar in the Ethics and Advertising Department?

Elizabeth Clark Tarbert: I’m Ethics Counsel for The Florida Bar. That department has three programs, first ethics, where we are engaged in giving advice to our Florida Bar members on ethics issues. So we will answer questions from our members who are in good standing about their own future conduct and whether or not it complies with the ethics rules.

The second program is Advertising in which we’re engaged in reviewing lawyer advertising for compliance with the lawyer advertising rules. And the third program is the Rules program in which we’re engaged in shepherding amendments to the rules regulating the Florida Bar and Bar policies and procedures through the rules amendments process.

Christine Bilbrey: So, what are some of the most common calls that you get from our members that you and your staff are answering about? When they answer the ethics hotline, what are people most interested in learning about from you?

Elizabeth Clark Tarbert: There is a very broad range of topics that we cover. We will answer any questions that have anything to do with Chapters 4 and 5 of the rules regulating the Florida Bar.

Chapter 4 is The Rules of Professional Conduct, which are the rules that if a lawyer violates they can be disciplined for. Chapter 5 is The Trust Accounting Rules.

However, some of the most frequent questions have to do with conflicts of interest. Those are very fact-intensive and it’s very specific to the person’s individual circumstances.

We also get a large number of questions about confidentiality, candor towards the tribunal, restrictions on right to practice, lawyer advertising questions, and trust accounting questions.

Karla Eckardt: So can you explain to our listeners when they should call your department versus us here at PRI?

Elizabeth Clark Tarbert: Sure. Anytime a lawyer has a question about whether or not something they’re about to do, it might violate the ethics rules, that’s when they should give us a call. I will remind you the number, it’s 1-800-235-8619.

Christine Bilbrey: And we often get callers on the helpline at PRI who are afraid to call you. They want us to give them an answer and we know that we don’t interpret the rules for them. We will cite rules and we will give them forms and a lot of information about running the business side of their law firms, but, what can you say to the members that are afraid to call your department?

Elizabeth Clark Tarbert: Well, I would like to assure all our members that their call is confidential. The rules require that the Bar give confidential ethics advice. So when members of the Florida Bar call us, we do not disclose to anyone that the person has called. There are only two exceptions, one, if the caller themselves raise as a defense to a grievance that they have spoken with the Ethics Department then we are allowed to release information to lawyer regulation.

Second, if the caller makes public statements about having received ethics advice from the Florida Bar, we can but we are not required to release information. And generally, we would only release information if either the inquirer agreed to it under those circumstances or if we felt a misimpression was being given to whomever the caller was speaking to about the advice that was being given. So when you call us, it’s completely confidential.

Christine Bilbrey: So, if an attorney calls you and you quickly realize that they are in trouble ethically, do you request that they call the Attorney Consumer Assistance Program here at the Bar or how do you handle that?

Elizabeth Clark Tarbert: Well, if someone calls and they have already done something, we’ve tried to give them as much help as we can.

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So what we will do is we will cite them to rules, ethics opinions or case law that can help them answer their own question as to whether or not they’ve already violated a rule. Generally speaking, there is no requirement to self-report if a lawyer has engaged in professional misconduct, so they’re not required to report that to the Florida Bar, but we will sometimes suggest that they might seek advice of a lawyer who is experienced in handling matters before the Florida Bar, so we might suggest that they might talk to respondents counsel. Because when you talk to us, if you’ve already done it, really all you’re talking about is mitigating your damages and I’m not the best person to help you with that.

Karla Eckardt: And just because we get a lot of these calls, does your department issue official opinions on Bar rules?

Elizabeth Clark Tarbert: All ethics opinions that are given are advisory only. They are not binding; however, they are real opinions. So we will tell a lawyer, yes, I think that would violate the rules or no, that would not violate the rules, or if say someone has a conflict, that is one that you can seek client consent, and as long as the person gives informed consent you can go forward with the representation or no, I don’t think that conflict is one that’s really consentable.

Lawyers can get oral advice over the hotline which we have usually anywhere between 26,000 and almost 30,000 calls a year or there are lawyers who also want to get advice in writing and lawyers are welcome to do that as well, they can write in and get a written opinion. They are all considered informal opinions the ones that are issued by staff, and again, they are just opinions, they are advisory.

Christine Bilbrey: And how many staff members you have that answer the hotline for you?

Elizabeth Clark Tarbert: There are eight at lawyers who are responsible for answering the hotline.

Christine Bilbrey: And I’ve heard you speaking about this before and you always say their own future conduct because Karla and I have both gotten those calls where they say, I have a friend at their firm. So if they are starting with that with you, do you clarify that or do you just go ahead and listen to their friends’ problem?

Elizabeth Clark Tarbert: Well, usually we listen to their problem first because we want to get an idea of what the situation is, and then if I need to clarify what their role and the circumstances are, so that I know whether or not it’s something I’m authorized to give advice about, then I’ll do that.

So if a person is calling on behalf of a friend, sometimes it really is them, they’re just afraid to admit that it’s them. Sometimes a lawyer has authorized another lawyer or even a non-lawyer to call on their behalf and then we will, if we believe that’s legitimate we’ll give advice. We will explain to the person what we think they should best do under that circumstance.

On the other hand, we also get calls where it’s someone calling maybe saying their opposing counsel is doing something and they want to know if their opposing counsel is violating the rules, that’s a circumstance under which we can’t give an opinion, that’s somebody else’s conduct and will decline to give an opinion, but same as in the circumstance where someone’s calling about past conduct, we will cite them to rules, ethics, opinions or case law that we think might be able to help them resolve the situation on their own.

Christine Bilbrey: And so, your department also does the advertising regulation, so can you for a brand-new attorney, they are going to get a — it used to be a phonebook ad or those different kind of things, explain what the Tombstone Rule is, like what they are allowed to have on that?

Elizabeth Clark Tarbert: Well, it’s a very specific rule. So, the Florida Bar, unlike a lot of other states, has a filing requirement. All advertisements are required to be filed for review within at least 20 days before their plan to first be used, unless the advertisement is limited to the information that’s listed in rule 4-7.16.

So there’s a laundry list of things in 4-7.16 that a lawyer can include in their advertisement without having to file it for review.

So it would include things like the lawyer’s name, their contact information, their areas of practice, their prior experience in the practice of law. It even includes some things like military service and some basic illustrations or photographs such as a statue of Justice, the Lady Justice or a flag, or its scales of justice.

Those are all illustrations a lawyer can include and still not have to file for review with the Florida Bar.

On the other hand, a great deal of other things do have to be filed for review, and those have to be filed at least 20 days in advance. The other thing that is important for lawyers to remember is direct mail and direct email are never exempt from the filing requirement, no matter how limited the information is.

Christine Bilbrey: And because we’re Bar employees people that don’t work at the Bar — I get this question a lot and I’m not going to say the attorney’s name but if you’re up here in the panhandle you have seen a million billboards for a particular attorney and he’s actually I think an Alabama attorney but somehow he contracts with Florida attorneys and they always say, why is the Florida Bar not doing anything about that guy because the billboards look like they violate our rules. So, can you act on that or does someone have to report them, what’s the process?

Elizabeth Clark Tarbert: Sure. My department is not involved in the actual prosecution of lawyers. If a lawyer is though or anyone, any member the public sees an advertisement that they think does not comply, they do have to file a complaint. The Bar doesn’t have the resources to go out on its own and take pictures of billboards or record television advertisements or record radio advertisements and prosecute people for violations of the rules.

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But the Bar will act on complaints if the Bar agrees that the advertisement violates the rules, so snap a photo of the billboard or record the TV or radio advertisement, send it into the Florida Bar.

Christine Bilbrey: And which department would they send that into?

Elizabeth Clark Tarbert: That would be sent to lawyer regulation and headquarters in Tallahassee.

Christine Bilbrey: And are there any other rules about advertising that are specific to websites? We get that question a lot of times.

Elizabeth Clark Tarbert: Actually interestingly, the same rules apply to websites as applied to everything else. The Bar simplified its rules in 2013 and the vast majority of the rules apply equally to every medium. So whether it’s a billboard, TV, radio website, your LinkedIn profile, the same substantive rules apply. There are certain required information like there has to be the name of a lawyer, a law firm who is responsible for the content. There has to be a geographic location by city or town of any bona fide office of the lawyer or law firm. If the advertisement mentions fees, there has to be information about whether or not the client is responsible for costs, and then there are also prohibitions. All the prohibitions relate to misleading information.

There are more actual substantive rules that apply to direct mail and direct e-mail because that’s a form of private communication, it’s not out in the public eye, so there are more restrictions that apply to those types of advertisements, but other than that all the rules are pretty much the same.

The one thing that is true of websites though that is not true of some other forms of advertising is they are exempt from the filing requirement even if they contain information that’s beyond the Tombstone rule, they are not required to be filed for review.

Karla Eckardt: I am glad you brought up the bona fide offices, because we get a lot of that, especially since we get a lot of new lawyers opening new practices, so can you explain to us what that rule sort of encompasses and why it’s important because a lot of new attorneys don’t understand that if they are, for example, a virtual office that it’s not necessarily a bona fide office because they think, well, I do have an office. It is a relocation. It’s not my house, so what exactly is the rule and how should new attorneys sort of understand it and really not be in violation?

Elizabeth Clark Tarbert: Sure, the rule requires that lawyers indicate in all communications about their services, a bona fide office, by city or town. Now remember, you’re not required to give a street address, so if you have — say, I am Elizabeth Tarbert here in Tallahassee. I have a virtual office but I don’t want people to know that really what I’m doing is practicing out of my home, and communications about my services, I can just say my office is located here in Tallahassee because that’s where I am practicing law. It has to be where I’m providing substantial legal services on a continuing and regular basis.

What the Bar is trying to avoid is, there have been many circumstance in past where lawyers would advertize multiple geographic location in an attempt to look larger than they are. So, you would say to clients you have — gosh, you have offices in Miami and Fort Lauderdale and Naples and Sarasota, and really all of those offices “are drop lines that are being answered say in their office in Miami.”

Clients really want to know where you are. They want to know, are you going to be readily available to them if they want to meet with you in-person. Are you familiar with the local court rules and familiar with the local judges in the area in which they are actually located where their case is going on? So this is to avoid misleading the public into thinking either you have more resources than you actually do or that you are going to be available to the client in-person when they want or are more familiar with those local rules and courts than you might really be.

Karla Eckardt: And just so new attorneys have some kind of resource, what advice would you give them and should they call you, should they call PRI, or should they call both? I mean, who should they call at the Bar to get their basic new practice questions answered? And I think you answered it earlier, but again, PRI ethics advice.

Elizabeth Clark Tarbert: Sure, it really depends on the nature of the kind of advice. If you want advice on physically how you open a new trust account, I would not call me, I would call PRI. If you want information on how to balance your trust account, hey, I don’t balance my own checkbook. I don’t have to, because it’s my money. If I’m a fiduciary as all lawyers are, and I have accepted somebody else’s money, I damn sure, better be able to balance the checkbook and be able to tell them to the penny any time they might call me how much money of theirs I am holding. On the other hand, with my own money, I don’t have to do that.

So, if you want to talk about how to balance your checkbook or how to make sure your cash receipts and disbursements Journal adequately represents what it’s supposed to, I’ll call PRI, I would not call me.

On the other hand, if a person had a question that really truly was more ethics, like I have money in my trust account and a third party is claiming an interest in it, my client doesn’t want me to pay him, what do I do with the money? That’s something you would want to call the ethics hotline on.

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So, similarly with an advertising question I would start with the ethics hotline because we are the ones who review the ads and so we’re going to be the ones who are more familiar with the decisions of the Standing Committee on Advertising and the Board on different issues. Again, your call is confidential. We do not record them. We do keep a record of what you say to us but we do not record the calls and we do not disclose to anyone that you’ve called us unless you raise it yourself somewhere.

Christine Bilbrey: And Elizabeth, I’d like to ask a little bit about the other part of your department, the rules, so it seems like — I have only been at the Bar two-and-a-half years. It feels like the rules change frequently because we have a lot of rules committees. If you are an attorney and you are trying to be compliant, what medium should I be looking for the rules changes? Do I have to be constantly scouring the Florida Bar website or how do you get that out when there is a rule change?

Elizabeth Clark Tarbert: Well, there’s a few different places. So, one, anytime the Board is considering changing any of the rules regulating the Florida Bar, and remember, one of the reasons you see so many changes is, there are 20 chapters of the rules regulating the Florida Bar. Most lawyers concern themselves mainly with Chapter 4 because it’s the Rules of Professional Conduct, but we have all kinds of other chapters, including things like membership classifications, your continuing legal education, disciplinary procedures rule, which is just how the disciplinary process works. So, there are 20 chapters of the rules regulating the Florida Bar and each one of those has some chapters and individual rules within its subchapters. So there’s lots of rules regulating the Florida Bar and they do change frequently.

But, the Bar does try to be transparent with its members, so when the Board is considering filing a petition with the court to amend the rules, there is notice in the Bar news multiple times. The Board follows a legislative format, so what happens is, there is a Board Meeting where there is a first reading and then there is a Board Meeting where there is a final action that’s at a subsequent meeting. So, before each reading there will be a news notice published in the Florida Bar news that gives a summary of what the Board is considering taking action on. It identifies the rule by number, by chapter, by subchapter then rule number and then a brief summary of what the change is, and then Bar members are welcomed certainly to call the department and get a full copy of the text that’s considered to be amended.

Then, there are often stories about what action the Board has taken at a meeting and those would usually include significant rules amendments, and before we file a petition with the Supreme Court to amend the rules we are required to publish the full text of the rules in the Bar news again.

So, there are multiple opportunities for a Bar member to know that a rules amendment is happening and to have input. Once it’s filed, the Bar member can also file comments directly with the Supreme Court, either in support or in opposition of a proposed amendment. And, once an amendment actually happens, once the court has adopted any change, we publish that both in the Bar news and on our website.

And, typically it’s passed through all the layers in the Bar and it goes to the Supreme Court, does it vary widely? How long you have to wait for the Supreme Court to either approve or disapprove the new rule?

Elizabeth Clark Tarbert: Well, it really does. We are on a biennial cycle with the court, so we file in October of even-numbered years. Any amendments that are ready to be filed, we can file out-of-cycle and we actually do. We think in the last year we filed six out-of-cycle amendments, but we try to keep as much as we can within that biennial package. And it really depends, once we file it’s in the court’s hands. We don’t really have any control over what the court does and it also depends on whether or not there’s opposition to particular amendments within that package. So something might get held up because there is controversy over it, or conversely it could be held up just because the court has other things that it has to accomplish before it can get to the Bar’s package.

Christine Bilbrey: And one of the rules, it seems like a small thing, but at PRI it’s exciting. Can you tell our listeners about the new rule change that’s coming up about where their trust accounts can actually exist? It used to be just banks. So, when is that happening that they are going to be finally able to use credit unions and can you tell us a little more about that?

Elizabeth Clark Tarbert: Sure, that court has just adopted an amendment that was proposed by the Florida Bar Board of Governors. It will become effective on February 1 of 2018 and that amendment allows lawyers to place funds that are held in trust in credit unions. The reason that it was not permitted before is there was not Federal Insurance for Credit Unions. The reason we require lawyers to place their funds in a bank or savings and loan, in the current rule it’s required that it be a federally insured bank or savings and loan.

So it can’t just be any bank. It has to be one that’s federally insured, and when there was federal insurance available for credit unions, the credit unions came to Florida Bar and said, hey, now we are not really any different from a bank, can your rule be amended to include credit unions? And the answer is, sure, because that’s what we really cared about. We are caring about the consumer and the protection of their funds, it has nothing to do with whether anybody thinks a bank versus a Credit Union is a more appropriate vehicle. It has to do with whether or not their funds are going to be adequately protected.

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Christine Bilbrey: Well, it looks like we’ve reached the end of our program. I want to thank Elizabeth Tarbert for joining us today.

Elizabeth Clark Tarbert: Thank you so much for having me.

Christine Bilbrey: If our listeners have questions or want to follow-up, how can they reach you or can they email you and what is the Ethics hotline?

Elizabeth Clark Tarbert: I’ll start with the Ethics hotline number that is 1-800-235-8619. Members are also welcome to call us at our regular department number, which is 850-561-5780. They can email us at [email protected] or they can write to us at the Florida Bar Headquarters address.

Christine Bilbrey: Excellent. So if you like what you heard today, please rate us in Apple Podcast and join us next time for another episode of The Florida Bar Podcast brought to you by the Practice Resource Institute on Legal Talk Network. I am Christine Bilbrey.

Karla Eckardt: And I am Karla Eckardt. Until next time, thanks for listening.

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