Board prepares to meet in person May 21
The Board of Governors will convene its first in person meeting in more than a year on May 21, a signal that the COVID-19 pandemic may be beginning to fade.
But because the pandemic remains a threat, the “hybrid” meeting will also be streamed via Zoom from Duck Key.
Board members are expected to consider a host of issues, from proposed Bar rule amendments related to appellate practice and criminal trial board recertification, to an advertising appeal arising from the slogan “Better off with Boohoff.”
The board will also receive the final report of the COVID-19 Pandemic Recovery Task Force, and a task force subcommittee report detailing the results of a Bar survey on remote court proceedings.
Created by President Dori Foster-Morales and chaired by President-elect Michael Tanner, the task force held the first of 15 meetings on August 5, 2020. That total does not include numerous subcommittee meetings.
The task force acted as the Bar’s central clearing house for COVID-related information and issues and the creation of the COVID-19 Information and Resources webpage was vital to the effort, according to the report.
“The COVID-19 page proved an effective communication and education tool because it was prominently displayed on the Bar’s homepage, easy to use, and constantly updated with timely, current, and relevant COVID-related news, and information,” the report states.
Task force projects ranged from membership fee waivers and the addition of financial services to the Member Benefits Program to help lawyers cope with the economic fallout, to others designed to help members adapt to the court system’s rapid pivot to remote technology.
The latter included CLE, webinars, and printed material designed to familiarize members with technical aspects of remote platforms, and a comprehensive Board Technology Committee project, the “Florida Bar Recommended Best Practices Guide for Remote Court Proceedings.”
The report also credits Foster-Morales for the accelerated roll-out of the Florida Lawyers Helpline, a project she championed before the pandemic, but was available to help lawyers deal with the added stress.
Task force projects were detailed in regular progress reports, so the final report focuses on recommendations for responding to future emergencies.
The board also will be presented with the results of a comprehensive Bar survey by a task force subcommittee on remote court proceedings that was chaired by board member Jorge Piedra.
The survey was emailed to nearly 4,000 Bar members from January 13-27 and generated a nearly 34% response rate, which is considered robust.
It found that most Bar members would prefer continuing conducting routine and non-evidentiary proceedings after the pandemic subsides, but not trials. See the Bar News story here.
“We had a very healthy response,” Piedra said. “I was pleased with the return, not surprised by the results, and I think it will be very useful information for the courts and everyone else to use as a roadmap to proceed.”
In other business, the board is expected to weigh proposed amendments to Bar Rules 6-8.4 (Criminal Trial Recertification) and 6-13.4 (Recertification) for appellate practice.
The Board of Legal Specialization and Education is proposing amendments to Rule 6-8.4 that would give the Criminal Law Certification Committee the ability to consider, “for good cause, involvement in protracted litigation as defined elsewhere in this subchapter” as a substitute for the minimum number of trials required for recertification.
“The amendments would increase the number of applicants who are able to be recertified if they cannot meet the minimum number of trials, but had long trials,” according to a staff analysis.
The proposed language is currently in the rule, but the board agreed at a December 4, 2020, meeting to remove the language should the Supreme Court adopt amendments that the board proposed to Rules 6-3.5 and 6-3.6, the main rules regarding board certification and recertification. On February 4, the Bar filed In Re: Amendments to the Rules Regulating The Florida Bar — Rules 6-3.5, 6-3.6, & 6-10.3, Case No. SC21.
“On further review, the amendments to Rules 6-3.5 and 6-3.6 address the meaning of good cause, but do not address the issue of protracted litigation, so keeping the provision is necessary even if the [Supreme Court] amends Rules 6-3.5 and 6-3.6 as requested by the Bar,” according to a staff analysis.
The Board of Legal Specialization and Education is also proposing amendments to Bar Rule 6-13.4 (Recertification) for appellate practice.
The proposed amendments would reduce from five to three the number of oral arguments required for an initial recertification. The number would drop to two for subsequent recertification cycles. (Applicants, however, would still be required to meet the five-oral argument requirement to become board certified.)
Proponents of the change note that appellate courts in general are granting fewer oral arguments as their workload increases. They also contend that the change is necessary because the Bar’s proposed amendments in the February case would remove the practice committees’ ability to consider exceptions.
“There is a reduction in oral arguments in the practice overall, and the amendment is an effort to retain board certified lawyers as well as provide relief for applicants since the Bar has asked that the [Supreme Court] delete the provision that ‘the Appellate Practice Certification Committee may waive this requirement on good cause shown,’” according to the staff analysis.
The proposal is designed to do more than help veteran practitioners maintain board certification, BLSE member and Miami attorney Kansas Gooden told the Program Evaluation Committee at a March 4 meeting.
Without the proposed change, senior attorneys will be less likely to allow junior associates to present oral arguments, which could disproportionately impact beginning, women, and minority lawyers, she said.
“The hope is to basically grow the next level of appellate attorneys,” she said.
The Program Evaluation Committee agreed and voted 17-0 to approve the proposed amendments. Joining in the vote was PEC and board member Amy Farrior, who is board certified in appellate practice.
In other action, the board is also expected to consider an appeal by Boohoff Law, a personal injury firm with offices in Tampa, Bradenton, North Port, Zephyrhills, and Seattle, Wa.
The firm filed five television advertisements for review, featuring the slogan, “Better off with Boohoff,” in December 2020.
Staff determined that the slogan is “a comparison with other lawyers’ services that is permissible only if the comparison is objectively verifiable” under Rule 4-7.13(b)(3), and that the statement “can reasonably be interpreted by a consumer as a prediction of success” under Rule 4-7.13(b)(1), and is therefore impermissible.
The firm argued that the statement is merely a play on words designed to raise name recognition, and “highlight the firm’s contribution to the community” because it regularly sponsors and participates in public service activities, according to the staff analysis.
The firm also argues that the advertisements make no reference to other firms, and that reasonable viewers will understand the phrase is merely a catchy slogan, not a comparison.
After the firm filed an appeal, the Standing Committee on Advertising voted 8-3 on April 7 to affirm the staff opinion that the slogan is an impermissible comparison to other lawyers’ services under Rule 4-7.13(b)(3).
But the committee voted 9-2 to reverse the staff’s opinion regarding Rule 4-7.13(b)(1), and instead determined that the slogan “cannot be reasonably interpreted as a prediction of guarantee of success or specific results that the lawyer can achieve.”
The firm requested a board review of the Standing Committee on Advertising decision on April 20.
In other business, the board is also expected to have final action on proposed amendments to Rule 4-7.13 (Deceptive and Inherently Misleading Advertisements) that would slightly ease restrictions.
A proposed amendment by the Board Review Committee on Professional Ethics would divide subdivision (b)(6) into (b)(6) and (b)(7), and make disclaimers in advertisements that feature enactments or dramatizations only necessary to avoid “misleading a reasonable viewer,” and make the wording of the disclaimer discretionary.
A review by the Standing Committee on Advertising determined that the disclaimers are unnecessary when it is clear that “it was a dramatization, and actors were merely actors,” according to the analysis.
Additionally, “the current rule has exact wording requirements, and lawyers should have some discretion to appropriately word disclaimers as long as the chosen disclaimer adequately addresses the circumstances.”
The board will also consider an amendment to Rule 4-7.16 (Presumptively Valid Content) that would add social media contact information, including social icons and logos. The change would make it clear that advertisements don’t have to be filed for review merely because they contain the icons and logos.
“Lawyers frequently add social media icons for Facebook or Twitter to their advertisements and, in electronic media, the icon also often contains a link to the lawyer’s social media site,” according to a staff analysis. “As in a URL to a lawyer’s website, this information is common and presumptively non-misleading such that a lawyer should not have to file the advertisement merely because social media icons and links are included.”
