Attracting new business is important to your legal practice, but there are many questions you should consider when marketing your firm. What type of content can your ad contain? How should you interact with potential clients online? Which marketing materials must be submitted to the Bar for review? From online campaigns to tv ads to social media posts, lawyers must follow advertising regulations and be aware of best practices. In this Florida Bar Podcast hosted by Christine Bilbrey and Karla Eckardt, Elizabeth Tarbert of the Bar’s ethics department offers guidance for ensuring compliant advertising and avoiding marketing violations.
Find more information in the Florida Bar’s Handbook on Lawyer Advertising and Solicitation.
Elizabeth Tarbert has been ethics counsel for the Florida Bar since 1997.
This podcast has been approved by The Florida Bar Continuing Legal Education Department for 1 hour of General or Ethics CLE Credit. Course #3829
The Florida Bar Podcast
A Crash Course in Lawyer Advertising and Solicitation
Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and legal practice management to help you run your firm, brought to you by The Florida Bar’s Practice Resource Center. You are listening to Legal Talk Network.
Christine Bilbrey: Welcome to the Florida Bar Podcast brought to you by LegalFuel, the Practice Resource Center of the Florida Bar on Legal Talk Network. We’re so glad you’re joining us. This is Christine Bilbrey. I’m a Senior Practice Management Advisor at the Bar and the hosts of the 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 and co-host of today’s podcast.
Our goal at The Practice Resource Center is to assist Florida attorneys with running the business side of their law practices. We focus on a different topic each month and carry the theme through our website with related tips, videos and articles.
Christine Bilbrey: So the beginning of the year is often a time for our attorneys to change firms or they go out on their own for the first time, which means that Karla and I get a lot of calls in our department from members asking about the details of starting a firm and attracting new business is obviously an important part of this. So this month we are focusing on attorney advertising hoping to help our members understand and stay compliant with Bar Rules.
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 GATER 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 your department here at the bar which is called Ethics and Advertising.
Elizabeth Clark Tarbert: The department has three programs. The first is Ethics in which we provide guidance to Florida Bar members on their responsibilities under the rules regulating the Florida Bar, focusing on Chapters Four, The Rules of Professional Conduct and five Trust Accounting. So, we have the ethics hotline where members can call toll-free and ask for advice about their own future conduct. They can also write us or email us, or fax us and we’ll respond in writing as well providing written opinions.
The second program is our rules program and that is where we make sure that the rules regulating the Florida Bar and other Bar policies and standards go through the appropriate process when they’re being amended. Amendments to the rules regulating the Florida Bar must be filed with the Supreme Court of Florida for its approval.
The third program, the one we’ll be focusing on today is review of lawyer advertising. So regulation of lawyer advertising in Florida takes two tracks, one is prosecution that is handled through lawyer regulation, the other is the review process, evaluation of lawyer advertisements for compliance with the rules regulating the Florida Bar before they’re actually aired.
Christine Bilbrey: So let’s start at the beginning.
Karla Eckardt: Yeah.
Christine Bilbrey: What type of advertisements must be submitted for approval by your department and we use the phrase all the time it’s in the rules. Can you tell our listeners exactly what a tombstone ad is?
Elizabeth Clark Tarbert: So, most advertisements frankly are required to be filed for review. All direct mail and direct email text messages, anything that is direct from a lawyer to a consumer that has to be filed for review, there is no exceptions.
For advertisements that appear in public medium, radio, TV, billboard signs, newspaper, magazine, those kinds of advertisements are required to be filed for review unless they’re a tombstone ad. A tombstone ad is an advertisement that contains limited information that’s listed in Rule 4-7.16 of the rules regulating the Florida Bar. It’s things like your name, your address, your telephone number, your website address, whether or not you accept credit cards, prior legal positions you’ve held, positions you’ve held in Florida bar or committees. Things that we think are so relevant to the practice of law that as long as you’re truthful that the public is not going to be misled and the bar doesn’t even need to see them.
Karla Eckardt: And now once — let’s assume it’s not a tombstone ad and it needs to be submitted for review. Can you explain the submission and review process and if there’s a fee, how long does it take to get approved, what would maybe cause something not to get approved?
Elizabeth Clark Tarbert: Sure. So, a lawyer is required to file all advertisements that are required to be filed for review at least 20 days before their first planned use. The lawyer submits each advertisement for review, each advertisement is required to be accompanied by a $150 filing fee if it’s timely filed. If it’s not timely filed, the filing fee is $250.
The Bar has 15 days on receipt of a complete filing in order to give an opinion otherwise the advertisement is deemed approved. The Bar really does not miss that deadline.
Karla Eckardt: Right. So, let’s say you have a standard, not a tombstone, but a regular ad, what are some things that have maybe stood out that are like automatically rejected from experience?
Elizabeth Clark Tarbert: One of the simplest things that lawyers often fail to do is include their geographic disclosure by city, or town, or county of a place where they have a bona fide office.
So for me, the minimum I would be required to say in an advertisement is Elizabeth Tarbert, Tallahassee Florida or Leon County for that matter. It wouldn’t be a very effective advertisement mind you and I wouldn’t be required to file it for review, because it’s tombstone information, but that would be the minimum that’s required and it’s something lawyers frequently fail to include.
Lawyers often frequently fail to include the name of their lawyer or law firm, very simple required information that lawyers sometimes forget to include.
Karla Eckardt: So, we’ve talked about now that’s information that should the bare minimum, so the location and what should not appear. So I know sometimes I see commercials perhaps with actors and things like that. What are some things that maybe — may appear in commercials or radio ads that shouldn’t be in a lawyer’s advertising submission?
Elizabeth Clark Tarbert: Well some things that you would not want to use for example are statements that would predict success or guarantee a specific result on behalf of a client. So for example, a lawyer would not be able to say, I can save your home. There’s no guarantee a lawyer can offer that they’re really going to be able to save someone’s home if they’re in foreclosure.
Another example would be, the use of an actor portraying a client giving a testimonial on behalf of the lawyer. Lawyers are permitted to use testimonials in their advertisements but they are required to meet certain requirements if they do, and one of the requirements imposed by the Standing Committee on Advertising is that it has to be the actual client. You can’t use an actor to portray a client.
Christine Bilbrey: So if it’s the actual person, can they do a dramatic reenactment of something that happened that the attorney helped them with?
Elizabeth Clark Tarbert: Yes, the lawyer could have a reenactment, but if they do that they would have to have a reasonably prominent disclaimer that it’s a dramatization not the actual event. There are additional requirements for testimonials, they include things like it has to be the actual experience of the person who’s giving the testimonial, hence if you have a client giving a testimonial it has to be the actual client, not an actor portraying that client. It has to be something where the person is qualified to evaluate the lawyer. It has to be someone who has some experience of the lawyer as a lawyer, not just somebody’s neighbor who thinks they’re such a nice guy, they’d like to give them a testimonial. They have no real ability to evaluate the lawyer as a lawyer.
The lawyer can’t pay for the testimonial. The lawyer can’t write the testimonial or edit the testimonial, it has to be the actual words of the person who’s giving it and if there’s information about results obtained on behalf of a client, there has to be a reasonably prominent disclaimer that prospective clients may not get the same or similar results.
Christine Bilbrey: So when you see the commercials and it’s just a lot of kind of — they look like publishers clearing house commercials, because it’s the clients smiling, waving, holding a gigantic check.
If someone complained about that, would the Bar ask for proof that every one of those people received the amount on their gigantic check that appeared in the commercials?
Elizabeth Clark Tarbert: If that were the subject matter of the complaint, yes the bar could certainly ask for that information, because when you have advertisements that provide information about past results the rules requires that that information be objectively verifiable. So the lawyer needs to be prepared to be able to produce some kind of evidence that they actually did in fact obtain that result on behalf of the client.
Christine Bilbrey: Okay. So we’re talking about things that they can include and I know it’s a big deal and if you’re a Florida Attorney to be Board-certified, they’re very proud of that and it’s a nice way to know that they know their stuff. So if they’re Board-certified, they can list that in their advertisement, but it gets murkier and I know there has been some opinions about this. If you’re not Board-certified but you want to call yourself an expert or a specialist in a particular area of practice, what are the rules about that?
Elizabeth Clark Tarbert: So, I’ll start with the board certification because there are specific rules that deal with Board Certification. If you’re Board-certified you have to include the certifying entity, so for example, if you’re a certified by the Florida Bar, you can comply with that by saying Florida Bar Board Certified.
You’re also required to indicate your actual area of certification. You can’t just say you’re Board-certified even if you say Florida Bar Board Certified. So you have to say Florida Bar Board Certified in Civil Trial or Florida Bar Board Certified in Marital and Family Law.
You can be certified and indicate that you’re certified if you are certified by an entity that’s recognized by the ABA, that’s certified by the ABA. So for example, the National Trial of Board Advocacy, they are one of the entities that’s recognized by the ABA as an area of certification.
So again, if you were certified by that entity you’d have to include that entity as the certifying organization in your ad.
Additionally, certification is individual to the lawyer, firms can’t be certified. So you can’t have a law firm stating it’s board certified, it’s the individual lawyer and you have to indicate which one it is.
Then as to your actual question with has to deal with whether or not other people can claim some sort of specialty or expertise, the rules now permit lawyers who are not board certified to indicate that they are specialists or experts, but they have to be able to objectively verify that based on their own education, background, training or substantial involvement in that area in which they’re claiming certification.
A law firm unlike an individual lawyer on board certification or a law firm on board certification, a law firm can actually claim specialty or expertise, if only if they have a lawyer who meets that requirement. And if not, all lawyers in the firm meet those requirements either by being board certified or by having the ability to objectively verify their background training experience.
If not all lawyers meet those qualifications, then they have to have a reasonably prominent disclaimer that not all lawyers are specialists or experts in that firm.
Karla Eckardt: So how do our advertising rules apply to websites or social media? We get this a lot because everyone wants to be on Twitter and Instagram and Facebook. So are they individuals is — can they post things as their own – should they, here’s the question, should they post things on any legal platform or legal social media platform that maybe shows them doing things that they’re doing in their personal lives?
Elizabeth Clark Tarbert: Well the Standing Committee on Advertising has actually issued guidelines on social media and also on video sharing sites and those are available on the Bar’s website under the Advertising Regulations Section. But basically what those social media guidelines say is, if you’re just posting about yourself, what you ate for dinner last night, your children, your cute puppy, those are things that our rules don’t really apply to.
However, if you are talking about your legal services then our rules are going to apply. So the rules actually although we sort of colloquially refer to them as the lawyer advertising rules, the rules themselves actually say, they are rules that apply to communications about a lawyer or law firm services.
So that’s the key to thinking about that issue. If you’re talking about your services, you’re talking about you practicing law, then yes, our rules are going to apply.
Christine Bilbrey: I’m curious. Is it — I know it’s not a rule, is it a best practice that you have your personal social media very distinctly separate from your professional social media, is that a way to or can they just put it all together as long as they’re not violating?
Elizabeth Clark Tarbert: You could do it all together if you choose to. I think it’s probably easier for a law firm to control it or an individual lawyer to control it, if you sync with them, if you separate them.
Karla Eckardt: So, and I guess it comes from the point of engagement with the clients, how is a lawyer then allowed to engage with clients on social media? So like let’s say a client doesn’t know the rules regulating the Florida Bar and the client post something about their case and then how is the lawyer to respond to that, if at all?
Elizabeth Clark Tarbert: Well if you have your own client trying to make contact with you through social media, first of all, as an ethics matter, you might want to really have a conversation with that client about whether or not they want to be posting about their matters on social media because anybody – depending on how they set their settings, sometimes anybody can see it.
Karla Eckardt: Right.
Elizabeth Clark Tarbert: It’s really not a good idea, you’re going to have an issue with the client potentially disclosing confidential or even privileged information that you really wouldn’t necessarily want them to share. So you might want to have that conversation first.
If the client misstates something, say the client gives a testimonial of the lawyer, I think they’re so great or whatever. Then if the lawyer is aware of it and the lawyer is aware that there’s misrepresentations or that, that statements don’t otherwise comply with the rules, their obligation is to ask the client to take it down.
Now, if it’s on the lawyer’s own page, the lawyer controls the lawyer’s own page, the lawyer is responsible for removing it when they become aware of it, but if it’s on some — the client’s own page and they don’t have control over it, all they can do is ask, that’s what the committee’s advice is, ask them to take it down then you have your documentation that you did your part you asked them to remove it.
Karla Eckardt: So, does that apply for like reviews so we get that question a lot? An attorney gets a bad review on Google, what can the attorney do to respond to a negative review?
Elizabeth Clark Tarbert: Well it’s pretty limited, lawyers are often disappointed when they call us with this very question.
Karla Eckardt: Yes, they are.
Elizabeth Clark Tarbert: They’re very limited in what they can do, because there really is not an exception to the confidentiality rule that would apply, that would allow a lawyer to actually disclose information about the client’s representation to respond.
This isn’t some kind of proceeding where your conduct is being questioned which is an exception to the rule, it’s just a Google review.
So the lawyer has some options though. The lawyer can of course ask Google to take it down. Google may or may not respond. The lawyer can actually ignore it, frankly that is usually my recommendation to people because if you engage with the person in any way, a lot of times they come right back at you and there’s back-and-forth and all that does is drive that up in the results and when somebody searches on your name.
It means they’re much more likely to get that negative review because there’s been back and forth between the lawyer and the client on it.
The third thing to do, the lawyer can do is issue basically a general denial. I don’t agree with that characterization or professional considerations prevent me from fully responding, but I disagree or it’s not accurate, that’s something a lawyer can do.
Finally, a lawyer does have the ability to turn this into a marketing opportunity. I have heard many marketers say this is a good idea, I’m not sure I always agree. But the lawyer can actually respond in a way to offer to try to make the client whole. So you could say wow, I’m so sorry to hear that you were disappointed in my representation, please contact my office and let me know what I can do to try to make this right.
I would caution lawyers if you’re not willing to actually do something to make it right, do not respond in that way because all you’re going to do is get another negative review. I called him as he asked me to do and he didn’t do jack for me.
Karla Eckardt: Right. So I think the important thing is if you get a negative review, don’t start saying well I did this for you and I got you this settlement, don’t share the details.
Christine Bilbrey: But there have been cases where the attorney called and said, I don’t even know this person. I’m going through a nasty divorce and I believe my wife’s family is or husband’s family is posting this. I mean if it’s really bad can they just say this person was never my client?
Elizabeth Clark Tarbert: If it really is a situation where it clearly was not a client that lawyer doesn’t owed that person any duty of confidentiality. So they can say this is not a client of mine.
Christine Bilbrey: Okay.
Karla Eckardt: Fair, I like that.
Christine Bilbrey: Okay, so at the beginning I talked about all the people that feel like spring cleaning, I’m going to start my own firm, I’m going to leave my firm or I’m joining a new firm and they call us and we’ve been getting a lot of these recently. What can they call their firm and what can they not call their firm because it’s clearly if you are Karla Eckardt, PA?
Karla Eckardt: I’m not an attorney just to be clear.
Christine Bilbrey: But that’s straightforward. It’s just right. They’re advertising, that’s another detail please advertise under the name that you practice under so that your clients see that. But what are — it gets really murky because they want to call themselves South Miami Traffic Ticket Expert, you know what I mean, all these either fictitious names or just like give us some of the guidelines on firm names.
Elizabeth Clark Tarbert: Great. Well Rule 4-7.21 is what governs law firm names and the first part of the rule says that you can’t have a false or misleading name. So you can’t say something that’s false, you also can’t have a name that would otherwise violate the rules.
So I can’t say I’m the best DUI lawyer in South Florida that can’t be the name of my firm. I couldn’t say that under the rules. That is a statement that is just not objectively verifiable. It’s a comparison of myself with other lawyers that I can’t possibly verify.
So whatever the name is it has to comply with the rules. I can practice under a traditional law firm name, but I can’t hold myself out as a partnership if I’m not really a partnership. So if I am Elizabeth Tarbert and I want to call myself Tarbert & Smith, Smith really better be my partner that Smith better be someone who actually is a shareholder in my firm own, has an ownership interest in my firm. There’s actually disciplinary cases on this.
Then another thing is that lawyers are allowed to use trade names but those trade names cannot be misleading either. So the thing that probably pops up the most is names that would be confusing to a consumer because somebody just looking at the name might confuse it with a governmental entity or something other than what it is which is a private law firm.
So for example, I’ve seen people try to use something like immigration office or immigration office of a particular geographic region, well, that’s a name that could be confusing particularly since a lot of your clients are not necessarily going to be English speakers, and it would be easily confused with the entity that they’re actually trying to convince to grant them citizenship.
So that would be something where we would probably tell somebody you would need a disclaimer that is a private law firm in all languages in which the ad appears. So that it’s clear to those consumers hey, you are a private law firm who is offering legal services for pay, you’re not the governmental entity that they would apply to, to get citizenship.
Another thing with trade names is lawyers who advertise under a trade name are required to use that name in their practice. So it has to be on your website, it has to be on your letterhead, it has to be together with your signature on pleadings, on business cards, on office signage, I mean if it’s going to be your name, you’ll have to use it consistently in your entire practice.
Christine Bilbrey: What about the gray areas where it’s just them but they have aspirations so they’re calling it —
Karla Eckardt: And associates.
Christine Bilbrey: And associates or the Bilbrey Law Group, am I a group of one is that a violation?
Elizabeth Clark Tarbert: It would be a violation actually the committee’s position is if you use a word like group or team as part of your law firm name, you have to have more than one attorney who’s employed by your law firm. There’s actually decisions on an associates. There’s disciplinary cases where the court is disciplined people for calling themselves an associates where they don’t have any, if you are a sole practitioner don’t call yourself an associates.
Christine Bilbrey: And if they lose their associates, do they have to change their firm name? I’ve had that call.
Elizabeth Clark Tarbert: If they are in the process of hiring new associates they do not have to change their firm name.
Christine Bilbrey: But how long can that process.
Elizabeth Clark Tarbert: Well, it has to be a bona fide process, it can’t be something where you really have zero intention of ever having associates again.
Christine Bilbrey: Okay so here’s another gray area that comes up and I’ve read the roles and it still feels a little great for me because I am not part of your department. Those situations where maybe the firm has been around a really long time or it hasn’t and a partner leaves, a partner dies, a partner retires, what are the rules about because if they had, if it was a four name firm and now it’s just the three of them, what situations are going to dictate in the rules that they have to change or can keep that name?
Elizabeth Clark Tarbert: Well it really depends on the circumstances of the person’s departure. So if the person retires or dies while they’re still at the firm and the firm continues in a continuing line of succession, they can continue to keep that firm name.
Now anywhere that lawyer is listed, it should be indicated that they’re retired or deceased whichever is applicable. If on the other hand a lawyer departs to start their own law firm or join another law firm, it is not proper to keep their name in the firm name because that is an actively practicing lawyer who’s practicing outside that law firm.
Another situation under which you can keep a person in the law firm is the traditional of counsel where a person was a partner at the firm and was a named partner and they sort of set me retire and they continued to practice only through the firm but they’re no longer a partner.
In those circumstances where they are practicing solely through the law firm and they were a partner in a continuing line of succession, the firm is allowed to continue to use that same firm name they’ve had but they have to indicate that that person is off counsel.
Christine Bilbrey: And where do they indicate that?
Elizabeth Clark Tarbert: I would say anywhere the person’s name is mentioned. So you could do it with on your letterhead with an asterisk or if you list all the partners’ name — if you list the firm name at the top and you list all the partners in the firm next to that person who is now off counsel, you would say off counsel.
Christine Bilbrey: Okay and because attorneys are professional hair splitters, I had a call she had been a partner in this firm for a really long time. She’s named partner, she’s going to be off counsel of that firm — but she’s also going to practice a little bit just on her own.
Elizabeth Clark Tarbert: We would not let you continue to use to be included in the firm name under those circumstances. The ethics opinion that allows it, the off counsel to continue to be in the firm name clearly indicates it’s someone who only practices through that firm and the traditional off counsel sense.
Christine Bilbrey: And can you be off counsel to more than one firm if you’re not a named in the firm name?
Elizabeth Clark Tarbert: It really doesn’t matter whether you’re in the firm name or not, off counsel really just means you have a close continuing personal relationship between a lawyer and a law firm that is something other than that of partner or associate. It has to be something more than a mere referral arrangement or a mere co-counsel arrangement but it’s a closed continuing relationship.
Generally speaking in my opinion, I think you could be off counsel to more than one law firm however there’s a limit because it has to be a closed continuing personal relationship and so there’s a limit to how many firms you could possibly have that kind of close relationship with.
Karla Eckardt: So speaking of close relationships, there are times where attorneys believe they’re paying an attorney for a referral and then that’s a common practice right, but what do you say or what do the rules say about when the referring attorney will not be participating in any way in the representation of the client?
Elizabeth Clark Tarbert: Well there’s no such thing as non-participation in anyway if you’re going to divide fees. So there’s no such thing in my opinion as the pure referral fee in Florida. If a lawyer refers a case to another lawyer, the minimum level of participation they are obligated to have under the rules and it’s 4-1.5(g)2 is they have to have a written agreement with the client that is signed by all the lawyers who are in different firms participating in the fee, the client.
The agreement has to spell out who was getting how much money and all lawyers who are in different firms have to agree that they will assume joint legal responsibility meaning you’ll be on the hook for somebody else’s malpractice potentially. And they have to be available for consultation if the client wants it. That’s the minimum level of legal services that you can provide in Florida and participate in the fee.
Christine Bilbrey: I feel like I want you to say that all over again because attorneys will say no everyone does this, I had a consult with them. I sent it over to the firm down the street and they have to give me 25% of whatever they’re collecting. But the consultation to me is not —
Karla Eckardt: Representation —
Christine Bilbrey: Yeah and they never tell the client that there’s this 25% getting kickback.
Elizabeth Clark Tarbert: Let me say it this way. There was a gentleman named Mr. Ruben who filed a complaint with the Florida Bar and said, Mr. Carsen is failing to pay me my 25% referral fee. The Florida Bar said please show me your written agreement, that shows that you’re participating in a fee that’s signed by you and Mr. Carsen and the client that spells out the fee division and where you assume joint legal responsibility and agree to be available for consultation.
Mr. Ruben said I can’t produce a written agreement, there never was one. So Mr. Ruben got publicly reprimanded. And I believe Mr. Carsen was sent to ethics school.
Christine Bilbrey: Okay I would like that as like an embroidered sampler for our office walls —
Karla Eckardt: There is no real referral fees.
Christine Bilbrey: I need proof. Okay. All right what are some real examples of deceptive and inherently misleading advertisements that you can share with us because it’s one of those phrases where they say, well I’m not being deceptive but it’s like I’ll know it when I see it situation but tell us what does it look like when the bar says, no this is deceptive and inherently misleading, what are some real?
Elizabeth Clark Tarbert: Well I’m not creative so everything I say will come from some real advertisement, that someone in my department has reviewed because I can’t think of things on my own.
So for example if a lawyer said they had 20 years legal experience, one year of that was as a lawyer and 19 years was in law enforcement that would be misleading because when people see an ad for a lawyer and they say they have 20 years legal experience, most consumers are going to assume that means as a lawyer.
Karla Eckardt: Right.
Elizabeth Clark Tarbert: Another example would be a lawyer who sends a direct mail on the same kind of paper that the clerk’s office uses to send their summons and it’s using the same font and the same case style and it look exactly like a thumbprint, but in a little teeny teeny tiny print. It says Jim Bob’s Law Firm in the corner and that is a another example of a misleading advertisement.
Another example I can think of is an advertisement in which the lawyer referred to the client’s ability to participate in a government program, gave him a case number that they could refer to as their official case number and had all this information that made it sound as if it was part – they, the lawyer was part of this government program.
Again in very fine print, if you read it all the way through and looked at the little teeny teeny tiny part at the bottom, you could see it was from a lawyer but just at a glance, it looked like it was from potentially some official something, some government office, telling you about a program you could maybe join in order to refinance your home to avoid foreclosure.
We’re talking about sometimes things that truly are misleading. There was another situation where a lawyer was disciplined, they were publicly reprimanded because they offered a free consultation in their ad. The consultation was only free for people who hired them, people who didn’t hire them were billed.
Christine Bilbrey: It was retroactively free.
Karla Eckardt: You got credit.
Elizabeth Clark Tarbert: Yeah it was truly free for people who hired them but for people who didn’t, he sent them a bill.
Christine Bilbrey: Oh wow.
Karla Eckardt: That’s brazen.
Elizabeth Clark Tarbert: Yeah. So I mean sometimes it’s really truly misleading. Sometimes, it’s really unintentional on the lawyer’s part, I believe, they don’t think about how the public might react to their advertisements but sometimes this looks pretty good touchable.
Karla Eckardt: Speaking of really teeny teeny tiny font on advertisements, I believe we have all seen some billboards or television commercials that maybe seem to violate the bar rules on advertising. A questionable one appears I think everywhere in Florida at least everywhere in the Panhandle and going north.
The attorney appears to be a Florida attorney but is not, is this some type of referral scheme or fee splitting scheme, does someone have to officially report a violation to the bar in order for the bar to sort of –
Christine Bilbrey: Or is that legitimate that this kind of state attorney can advertise all over the place and then just kick the cases to Florida lawyers?
Elizabeth Clark Tarbert: All right, I cannot comment on another lawyer’s conduct. I will say there are a couple of legitimate possibilities and of course it is always possible that someone is doing something that violate the rules. So one legitimate thing is there are certainly certain federally preempted areas where the Federal government gets to decide who can practice in front of it.
So for areas like immigration and before ICE, Federal tax before the IRS practiced with the US Patent Office and practiced before the Social Security Disability Administration, those are things that the federal government decides if you’re admitted to anywhere in the United States basically you’re admitted everywhere.
So if a out-of-state lawyer is admitted and is practicing in those areas, the bar can’t stop them from doing that.
Now our rules do say if you are advertising in Florida, targeting Florida residents for those cases, our rules apply to you just as if you were a Florida Bar member. So those people must comply with the rules, but they need to indicate either that their practice is limited to that federal area or that they’re admitted in whatever jurisdiction, they are actually admitted in only and/or preferably both things.
Another thing that happens sometimes with out-of-state law firms is you could have a true interstate partnership where there is a Florida office and there is an office in another jurisdiction and the Standing Committee on Advertising has said a lawyer from that just so they don’t have to change their advertisements they can use the same advertisements everywhere.
The lawyer from the other jurisdiction can appear in the advertisements and their name if it’s the firm name is the name of the out-of-state lawyer or includes the name of the out-of-state lawyer, we’re not going to make them change their name, but if the out-of-state lawyer appears, they have to have a disclaimer that they’re not admitted in Florida or that they’re admitted in their own jurisdiction only.
Christine Bilbrey: And then it brings up for me when I see that because the other hot topic within advertising has been the qualifying providers. So apparently lawyers are permitted to participate with these for-profit qualifying providers only if the qualifying providers meet specific requirements, how does an attorney know when somebody — one of these qualifying providers says hey we can get you a lot of leads just sign up with us, can you dispel some of the murkiness?
Elizabeth Clark Tarbert: I’ll try.
Christine Bilbrey: Okay.
Elizabeth Clark Tarbert: So first of all, we call them qualifying providers we used to call them lawyer referral services. We call them qualifying providers because there are states that prohibit for-profit lawyer referral services. We do not. But in order that entity should not have to call themselves lawyer referral services which might get them into hot water in another state, who might otherwise allow them to operate, we came up with their own title.
It does not mean you have to call yourself qualifying provider, what you are required to do for lawyers to participate though is you have to be clear what it is that you do and what you don’t do. You can’t hold out as if you, yourself for providing the legal services, it has to be clear that all you can do is refer them to a lawyer who can provide those services directly.
So the qualifying providers include lawyer referral services, tips or leads generators, any group or pulled advertising program, directories things like that, where the qualifying provider is getting any kind of benefit from the lawyers’ participation in their program. Usually it’s payment.
Christine Bilbrey: Okay, but it’s very specific because there’s a lot of things about you can’t be fee splitting with?
Elizabeth Clark Tarbert: Correct. There are lots of requirements in order for Florida Bar members to participate. So the qualifying provider has to comply with the lawyer advertising roles including they can’t directly solicit clients in the same way that lawyers can’t directly in person solicit clients.
They also can’t divide fees, so the lawyer can’t divide fees with the qualifying provider. They can pay them a reasonable flat fee say or they can pay them a reasonable fee per time period in which they’re participating. There’s actually an ethics opinion on this topic if people want to delve further into what an appropriate payment to a lawyer referral service or a qualifying provider might be.
They have to indicate when they refer people where the lawyer is located at the time of the referral, not in the advertisement obviously because who knows that in the advertisement, they have lawyers participating in multiple cities usually.
They also have to respond to the Florida Bar. If the Florida Bar makes an official inquiry they have to respond within 15 days. They have to notify the Florida Bar on an annual basis of all the lawyers, Florida Bar members who are participating in their service and they have to provide documentation to the participating lawyers that they’re in compliance with our rules.
So all those things have to happen in order for the lawyer to actually participate.
Now the rules also say that the lawyer is going to be responsible for the conduct of this qualifying provider unless the lawyer engages in due diligence before agreeing to join or to participate or if the lawyer is notified by the Florida Bar that the bar believes the qualifying provider is not complying with our rules, and the lawyer does not stop participating within 30 days of that notification.
Now what can a lawyer do to check? Well, the minimum things lawyer could do for example would be hey, just pick up the phone and call the Florida Bar, there’s two things you can check right away. One, have they ever filed an annual report with the Florida Bar? If they’ve never filed an annual report, they are not in compliance with our rules.
Christine Bilbrey: Okay.
Elizabeth Clark Tarbert: We keep a list also on the advertising regulation page. We keep a list of the qualifying providers who have filed the annual report, so the lawyer can either check that list but since we only update it quarterly, I recommend calling.
Christine Bilbrey: Okay.
Elizabeth Clark Tarbert: Another thing lawyers can do is talk to the advertising department, our department and ask if they’ve ever filed advertisements for review and whether if they did, whether or not they comply. Those are both good indicators that they’re actually at least making an attempt to comply with the rules and lawyers really should make sure also that they look carefully at whatever agreement that they’re making with that qualifying provider to make sure they are not dividing fees.
Christine Bilbrey: And I also saw in the rules it says that if they do participate with a qualifying provider, the attorney individually has to notify the bar, is it your department that they call or is that something?
Elizabeth Clark Tarbert: Actually no, they would notify lawyer regulation, it’s the same — its headquarters for lawyer regulation and they’re the same people who take the court the annual reports from the qualifying providers. They also get the information from the lawyer that they are agreeing to participate.
Karla Eckardt: And you talked about soliciting business and how the qualifying providers still have to abide by the Florida Bar rules on that topic. So what are some prohibited forms of solicitation? So for example, can attorneys do target mailings, where they send letters to everyone in the newspapers, daily arrest report, because that happens.
Elizabeth Clark Tarbert: It does. So, what is actually prohibited is what’s considered in-person solicitation. In-person solicitation is live contact, so it’s face-to-face, over the telephone, it could be Skype, but it doesn’t include written communications unless the written communications fail to comply with the specific rules for direct mail, well we call it direct mail now it’s direct written communications.
So lawyers and the people on their behalf including qualifying providers can make direct contact with prospective clients, but only through writing. So you can mail, you can email, you could text as long as it meets certain requirements, and it can even be targeted. It could even be someone you know has a specific legal problem like they’ve been arrested, you know their house is under foreclosure. Someone has filed a divorce action against them.
Even if you know they have a specific problem you can still contact them, but again, only through a written form and there are even more restrictive requirements if it’s targeted.
Karla Eckardt: So you would advise against waiting out in the courthouse lobby or the emergency room waiting area?
Elizabeth Clark Tarbert: I really would, because honestly, in-person solicitation is one of the most, most egregious forms of violation of our advertising rules, that is where lawyers are most likely to get into serious trouble.
So for example we have a lawyer who is disbarred because he hired a non-lawyer, sent him to a training course to become an ordained minister and send him in the hospitals to sign up clients, that lawyer was disbarred.
Christine Bilbrey: Wow.
Elizabeth Clark Tarbert: There was a lawyer who in the wake of the tornadoes that went through the middle part of the state was passing out his brochures and talking to people at the sites where their houses were devastated, that lawyer was suspended.
So anytime you have that kind of in-person solicitation that is the most serious kind of advertising violation and a lawyer generally can get into a lot of trouble for that including losing their license.
Christine Bilbrey: And there is, okay so I read this opinion because here’s the real gray area. The attorney gave a stack of business cards to his banker friend, so if people that were doing business with the banker needed an attorney he could hand them out, and they were so specific that if he had given him one or two cards, that’s okay. But if he left a whole stack there he was in trouble.
Elizabeth Clark Tarbert: Well, I think the committee’s opinion is look, if you’ve given somebody a stack a business card, you know they’re soliciting for you, you’re giving them for the purpose of having them hand them out to all their customers. You really don’t want to put yourself in that position.
So honestly what we would recommend to people is number one, if you know somebody is soliciting for you, you might want to stop them from doing it but two, you might also want to suggest if people are giving out the names of lawyers give out the names of multiple lawyers not just yours, otherwise you’re in a position where someone is probably going to accuse you of using someone to solicit for you.
Christine Bilbrey: Okay. Let’s pivot a little bit, because we get a ton of calls about virtual attorneys and that can be all kinds of things. It can be someone who’s very tech savvy and they have a client portal and they’re doing everything online and they — or it just means somebody who doesn’t want to go to their office anymore and so they’re just going to stay home but they’re themselves a virtual attorney.
And so we have to spell out some of the specific advertising requirements, what are some, just off the top of your head that very directly apply to someone who has a new virtual practice?
Elizabeth Clark Tarbert: All right. So one thing to be concerned about is number one just even the ethics of it. The rules don’t prohibit you from being a virtual lawyer but you owe those clients all the same ethical obligations that you would any other client.
So you have to make sure you have a complex checking system. You have to make sure that you are able to maintain confidentiality of client information. So especially if you’re exchanging all the information via a portal or through email or some other electronic means, you need to make sure you’ve taken precautions to secure that information against intrusion from some third party.
You don’t want something where people are just posting stuff on your website that anybody can see or on your portal that anybody can see, that is not safeguarding confidentiality.
You need to make sure you’re able to offer those services competently and diligently. If you’re going to limit the scope of your representation, there’s a specific rule that applies 4-1.2(c) that says that if you’re going to limit the scope of your representation it has to be allowable under law and under court rule.
It has to be reasonable under the circumstances. You can’t so limit your representation that you’re not really giving the client anything of value and you have to have a written agreement with the client. It spells out exactly what you are and are not going to do for them and you and the client also have to agree whether they’re going to be considered represented for purposes of an opposing counsel whether or not they can contact them directly or not.
So those are some of the ethics issues. Some of the advertising issues is, be careful what you ask for. If you invite people to provide you with information, you might get stuck with more clients than you thought you had at least for complex purposes, like people could be choosing — getting you conflicted out of cases because they just want to give you a ton of information in response to your invitation to do so.
And that might prevent you from representing the opposing party even if you and the person who gave you that information never really agreed that they were going to become a client, so you have to be careful about that.
Christine Bilbrey: Can you talk a little bit about bona fide offices? This comes up because –
Karla Eckardt: Yes, I had a lady recently called for example, she was from Sarasota but she wanted to target Miami and Fort Lauderdale clients, so she wanted to know how she could go about getting a Miami address, even though she wasn’t in Miami, she was in Sarasota.
Elizabeth Clark Tarbert: Well that is a very specific rule in the rules regulating the Florida Bar, it’s in 4-7.12 and it says, that a lawyer has to include in any advertising a bona fide office by city, town or county. You don’t have to have a physical street address or an address of any kind, you just have to indicate by city, town or county where you’re providing substantial legal services.
So you could have multiple offices even a solo practitioner could have multiple offices although again there’s a limit to how many bona fide offices any individual lawyer could have.
The issue that comes up though is and the reason for the rule is there were lawyers who are advertising, we would call them drop lines, they would advertise multiple phone numbers or multiple offices and they really only had one office. They had phone numbers and office locations.
Christine Bilbrey: The UPS suite addresses.
Elizabeth Clark Tarbert: Right or the Ruby Receptionist address or even they’ve made an agreement with another law firm to be able to use their conference room.
Christine Bilbrey: Right.
Elizabeth Clark Tarbert: So what we tell lawyers is you have to indicate your bona fide office but you can certainly indicate to people you’re available by appointment at or for consultation at other locations, but you can’t hold those out as if they’re your own offices because they’re not.
Karla Eckardt: And another question sort of similar to that that we get a lot is a home office. So they don’t want to necessarily publish their home offices and how do they go about then again city, county, I get that, but on the Bar’s end, can they have then a separate mailing address?
Elizabeth Clark Tarbert: Well, the Bar does require you to have an official bar address and that could be any address that you choose. So even your official bar address could even be a post-office box as long as you also provide the Bar with a physical address. So hey, we can serve you if we need to find you.
But if you’re talking about how you’re going to hold yourself out to the public, again, we only require that you list it by city, town, or county. If you want to have a physical address where you meet people and it’s not your office, it’s Ruby Receptionist or you’ve borrowed somebody else’s conference space, you would say my office is in Sarasota because that’s where you’re sitting in your home substantially providing legal services.
I’m available for consultation or by appointment at this other address.
Christine Bilbrey: But that address, they still, because a lot of virtual attorneys are like, well I say that I provide services in the Sarasota area, but then they go ahead and put their PO Box address on there.
Elizabeth Clark Tarbert: They can put their PO Box address, because again it’s clear that’s a PO, that’s a PO box.
Christine Bilbrey: If it says that.
Elizabeth Clark Tarbert: Right.
Christine Bilbrey: What if they say I’m available in the Sarasota area and then they give an address that it really is a box but it looks like a real address. Can they not put that because it’s kind of misleading them into that it looks like it’s a real address because like UPS it’ll say whatever the street is suite number 204?
Elizabeth Clark Tarbert: I’ve never had anybody ask me that question.
Karla Eckardt: The recommendation I usually tell people is you should make it clear that that’s your mailing address. I mean –
Elizabeth Clark Tarbert: I would agree with that, because honestly not just as an ethics matter but as a business matter, you’re going to have clients who are –
Christine Bilbrey: They show up at that address and they cannot find you if they see a tiny little box.
Karla Eckardt: From a practical standpoint, it should be clear, make yourself available to however many clients you want across the state, but make it clear and I think that’s sort of the point of the rule available for appointment. So again, the same should I guess supply for mailing address only.
Christine Bilbrey: Yeah. And I do want to make the point because I know there’s been attorneys where they rent a literal brim closet in ten cities and they’re like I have a lease for this, this is my office.
Elizabeth Clark Tarbert: A lease is not really how the standing committee defines a bona fide office. They defined a bona fide office as being a place where you appear on a regular basis and provide substantial legal services through that location. So if you don’t have anybody who’s located there like if you have — if you are there once a month by appointment only, that’s not a bona fide office.
Karla Eckardt: What if it is staffed at all times but maybe just with a receptionist?
Elizabeth Clark Tarbert: Even if it’s staffed by a receptionist if you are not — if the lawyer is not there on a substantial basis providing legal services through that location, it’s not considered about a bona fide office.
Karla Eckardt: I’m just going to put a link to this.
Christine Bilbrey: I know, I was just thinking the exact same thing. If everyone would be required to listen to this, it would cut down a lot of these phone calls, okay.
Karla Eckardt: It’s great.
Elizabeth Clark Tarbert: There actually is a definition of bona fide office in the handbook on Lawyer Advertising and Solicitation online.
Karla Eckardt: There is.
Christine Bilbrey: And we’re going to make that available on our website, we are going to put a link to your handbook.
Karla Eckardt: We do, but then they want to argue it at that point, we sent them to you.
Christine Bilbrey: Right, right. Yes, we will kick you upstairs to ethics if you want to argue the rules. We will not interpret the rules for you. Okay, so advertising is a really broad term and I think people forget that signage is very much so advertising even if it’s just a little tiny plaque on a door.
So what are the rules about — I’m kind of virtual, but I also share space on a regular basis and I have people meet me there all the time. What are the signage rules if I am space sharing with either another attorney or a non attorney for the signs?
Elizabeth Clark Tarbert: All right. So lawyers are in fact allowed to share space with both other lawyers and non-lawyers, but you need to make sure that you do in fact have separate office signage, because you’d want to make clear that you’re separate entities. There people used to actually say you had to have a separate entrance, we don’t require that anymore, you can all go through the same front door.
Karla Eckardt: Change the building.
Elizabeth Clark Tarbert: Yeah, we are not going to require you to reconstruct a building, but you do have to have separate office signage so it is clear you are not the same as the other law firm or the non-lawyer entity. We also really recommend you have some concerns about confidentiality. You need to make sure that you have separate office space that other people don’t have access to where your files and your computers are located and where you can talk to clients in privacy.
I mean I would really recommend considering not sharing a waiting room and not sharing a conference room, but if you have to, you need to make sure that it’s soundproofed and that other people can’t enter when you’re in there talking to a client.
Christine Bilbrey: And what if they’re sharing a receptionist so people are calling in?
Elizabeth Clark Tarbert: If you share a receptionist, you need to make sure you train that receptionist to answer in a neutral way like professional offices unless they’re really super good, if you have separate phone lines at making sure they’re clear which phone line they’re answering because you can be seen as soliciting people if you have a receptionist who’s answering for the insurance company, good afternoon, Law Offices of Jim Bob.
Christine Bilbrey: Okay that makes sense.
Karla Eckardt: Neutral receptionist.
Christine Bilbrey: Okay. So talking about no, you don’t have to reconstruct your building, you have two offices and I have really gotten this phone call a lot. Hey, one they want to report other people or two they’re calling in because they’ve been told this by an older attorney. Does the Florida Bar say that we have to have fax numbers?
Elizabeth Clark Tarbert: No, the Florida Bar does not require you to have a fax number.
Karla Eckardt: Get rid of your fax numbers.
Christine Bilbrey: No, I have been told, I have had people that argued with me that absolutely they were telling the new partner that had come on we have to have a fax number and I’m thinking yes and you must be able to send smoke signals and telegrams and I don’t know how we can break this to them, but there’s a lot of urban legends.
Elizabeth Clark Tarbert: But you are actually, you are required to have an official bar name, you’re required to have an official bar address and if your official bar address is a PO box, you are also required to give the Bar the physical address.
Christine Bilbrey: And your public facing profile can be different?
Elizabeth Clark Tarbert: Can be different than what the Bar the mail — the actual physical location where we can find you, address, yes, it can be different and you are also required to have to provide the bar with an email address unless you’ve got an excuse.
Christine Bilbrey: Really?
Elizabeth Clark Tarbert: Yes.
Karla Eckardt: Welcome to the 21st century every one.
Christine Bilbrey: Because I have seen a lot of profiles that do not have email addresses or they’re so out of date that they bounce back.
Elizabeth Clark Tarbert: With the e-filing, I mean lawyers are required to e-file now. So if you are litigator, you’ve got to have an email address.
Karla Eckardt: We get that question too.
Elizabeth Clark Tarbert: So unless you’re excused in some way you’re required to provide us with an email address, we need to be able to reach you.
Karla Eckardt: But no fax numbers.
Elizabeth Clark Tarbert: Not required. Not required you should have a fax machine.
Christine Bilbrey: And then just because I’m — I know that you do a lot of people don’t realize that when you’re at the bar that you have all these committees that you’re the liaison for. Tell us what the role of the Standing Committee on Advertising is and then I also read in the rule something about the mandatory advertising workshop like we know about if you get in trouble like —
Karla Eckardt: Trust accounting.
Christine Bilbrey: Yes. The technical violations of trust accounting you may be sent to school, you have to go to the little remedial trust accounting school. Is there really an advertising like punishment workshop?
Elizabeth Clark Tarbert: It’s not a punishment, it’s diversion.
Christine Bilbrey: An enlightenment.
Elizabeth Clark Tarbert: It’s a diversionary program.
Christine Bilbrey: To avoid discipline.
Elizabeth Clark Tarbert: So yes, there is actually is an advertising workshop and it is one of the bar’s diversion program. So anytime a lawyer is in minor trouble and does not have a disciplinary history or much of one, often they are offered the opportunity to attend the diversionary program in lieu of having to go through the disciplinary process.
So if you’re a lawyer who advertises and someone files a complaint and the bar thinks that you have violated the rules, but they don’t think it’s serious. The bar might offer the lawyer the opportunity to attend the advertising workshop which is a workshop that goes over the rules in excruciating detail, you get more than in this podcast.
Christine Bilbrey: And who teaches that is it all over the state like who is that?
Elizabeth Clark Tarbert: It is offered at different places over this state sometimes it is bar disciplinary council. I have done it myself more than once, it really depends on where it’s located and who is available.
Karla Eckardt: How many people actually broke the rules the past month maybe?
Christine Bilbrey: Oh, yeah, like if they have to schedule it as needed, so like when people get.
Elizabeth Clark Tarbert: Well, it’s not just as — it’s not just as needed on a time basis, also where the lawyer is located, I mean, you really — you don’t necessarily want to have to make lawyers traverse the whole entire length of the state.
Christine Bilbrey: But it’s like traffic school, you don’t want those points on your license, so you’re just going to go do a little bit of time, but you have to show up in person.
Karla Eckardt: Take that option, don’t do the disciplinary option.
Christine Bilbrey: Or get the handy Handbook on Lawyer Advertising and Solicitation.
Elizabeth Clark Tarbert: Or the best advice I can give you which is file your ads, because if you do and they’re exempt, we’ll just give you your money back until they’re exempt. If they’re not exempt, okay, you are also complied with your filing requirement we will tell you everything that we think is wrong with your ad and you’ll have the opportunity to revise it.
Karla Eckardt: Alright. So file your ads.
Christine Bilbrey: Did not know that, okay file away. Okay, that’s very helpful.
Elizabeth Clark Tarbert: Christine, you asked about the role of the Standing Committee on Advertising. As with many things that come into the Florida Bar the first level of review that occurs is from the Florida Bar staff. So when lawyers file their advertisements for review is assigned to a staff attorney, an attorney provides an opinion, the advertisement either complies or we decline to provide a notice of compliance and we list all the reasons why we believe the advertisement does not comply usually with helpful suggestions on how the lawyer could revise the advertisement and make it comply.
If the filer disagrees with the opinion they’ve gotten, they can request review by the standing committee on advertising within 30 days of the date of the letter that notified them they’re not in compliance.
The standing committee meets quarterly usually and they review any requests that they have, they can choose to affirm the staff opinion, they can reverse the staff opinion or they can decide to do something else entirely. If the lawyer then still disagrees with the committee’s decision they have an opportunity to request review by the Florida Bar’s Board of Governors.
The committee also is responsible for putting out the Florida bar’s Handbook on Lawyer Advertising and Solicitation, which is available on our website and they also assist in providing guidance in response to specific advertising inquiries, not just filings.
Christine Bilbrey: Okay, it looks like we’ve reached the end of our program. Thank you so much Elizabeth Tarbert for joining us today.
Elizabeth Clark Tarbert: Thank you for having me.
Christine Bilbrey: If our listeners have other questions because they will. Where can they find the Handbook on Lawyer Advertising and Solicitation and who do they contact if they just want to talk to someone on the phone?
Elizabeth Clark Tarbert: To find the handbook and a bunch of other information that’s available on lawyer advertising, they can go to the advertising regulation page. The easiest way I can tell you to do this is go to the bar’s website www.floridabar.org. In the upper right-hand corner where it says, Rules and Ethics, click on that, click on the middle box which says, Ethics and on the left hand side, the bottom link is advertising regulation it will take you straight to that page.
If you have questions and you want to talk to somebody, then you can just call the Ethics Hotline at 800-235-8619.
Karla Eckardt: I think about that number in my sleep sometimes.
Christine Bilbrey: I think I know it better then like my mother’s cell phone number.
Karla Eckardt: I know it better than our own department 800 number.
Christine Bilbrey: Yeah, I don’t know — I don’t know our 800 number, that’s horrible.
Karla Eckardt: That’s fantastic.
Christine Bilbrey: So if you like what you heard today, please rate us in Apple Podcast. Join us next time for another episode of The Florida Bar Podcast, brought to you by LegalFuel, the Practice Resource Center of the Florida Bar on Legal Talk Network.
I’m Christine Bilbrey.
Karla Eckardt: And I am Karla Eckardt. Until next time, thank you for listening.
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