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In re Amendments to Rule Regulating Florida Bar 4-7.14.

Supreme Court of Florida

June 27, 2019

IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR 4-7.14.

          Original Proceeding - Florida Rules Regulating the Florida Bar

          Joshua E. Doyle, Executive Director, Michelle R. Suskauer, President, John M. Stewart, President-elect, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida, for Petitioner

          Joseph Barry Schimmel and Robert M. Sondak of Cohen, Chase, Hoffman & Schimmel, P.A., Miami, Florida, Responding with comments

          PER CURIAM.

         The Florida Bar petitions the Court to amend Rule Regulating the Florida Bar (Bar Rule) 4-7.14 (Potentially Misleading Advertisements). We have jurisdiction. See art. V, § 15, Fla. Const.

         The Bar proposes removing the requirement from Bar Rule 4-7.14 that a lawyer must be board certified to claim expertise or specialization in advertisements. It also proposes adding new language to the rule, as well as to the rule's commentary, setting out when a law firm or lawyer who is not board certified may claim specialization or expertise.[1] The proposed amendments are in response to In re Amendments to the Rules Regulating the Florida Bar (Biennial Petition), 234 So.3d 577 (Fla. 2017), where the Court rejected as problematic the Bar's initial attempt to address the United States District Court for the Northern District of Florida's decision in Searcy v. Florida Bar, 140 F.Supp.3d 1290 (N.D. Fla. 2015), which held, in relevant part, that provisions in Bar Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from making truthful statements that they "specialize in" or "have expertise in" a particular field of practice were unconstitutional.

         The Bar's proposal in this case was approved by the Board of Governors of The Florida Bar, and formal notice of the proposed amendments was published in The Florida Bar News. The notice directed interested persons to file their comments directly with the Court. The Court received one comment from attorney Joseph Schimmel, who identified what he believed to be several ambiguities in the Bar's proposal. The Bar filed a response and an amended proposal correcting many of the issues identified by Mr. Schimmel.

         Having considered the Bar's petition, the comment filed, and the Bar's response and amended proposal, the Court hereby adopts the amendments to Bar Rule 4-7.14 contained in the Bar's amended proposal with the following modifications. We replace the word "and" in new subdivision (a)(5) and in the new comment with "or" to clarify that a lawyer may claim specialization or expertise if he or she can objectively verify the claim based on his or her "education, training, experience, or substantial involvement in the area of practice." We also delete from the new comment the phrase "that is generally understood within the legal community to be."

         Accordingly, Rule Regulating the Florida Bar 4-7.14 is amended as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The amendments shall become effective on August 26, 2019.

         It is so ordered.

          CANADY, CJ, and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ, concur

         THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

         Appendix

         RULES REGULATING ...


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