Florida Bar Re Amendment to Integration Rule

399 So. 2d 1385, 1981 Fla. LEXIS 2691
CourtSupreme Court of Florida
DecidedMay 21, 1981
DocketNo. 54081
StatusPublished
Cited by3 cases

This text of 399 So. 2d 1385 (Florida Bar Re Amendment to Integration Rule) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Bar Re Amendment to Integration Rule, 399 So. 2d 1385, 1981 Fla. LEXIS 2691 (Fla. 1981).

Opinions

OVERTON, Justice.

The Florida Bar Board of Governors has petitioned this Court to approve a plan which will allow members of The Florida Bar to become “certified” as having special competence in the areas of taxation and civil trial advocacy. In September, 1979, we rejected the bar’s initial plan but approved lawyer certification in concept. We also suggested that the bar submit a pilot program and requested a recommendation of how certification could operate with the Florida Designation Plan approved by this Court on October 3, 1975. See In re The Florida Bar, 319 So.2d 1 (Fla.1975). We granted rehearing to allow submission of a new permanent certification plan.

We approve in substance the certification plan as submitted but have modified the grandfather provision. We find, however, that the plan’s administrative structure and procedure are cumbersome and not properly interrelated with advertising and designation. The certification plan must harmonize with and complement the advertising of legal services and our previously approved designation plan. We consequently remand to The Florida Bar for redrafting and resubmission to the Court.

As the Florida legal profession embarks fully into specialization, we emphasize its two-fold purpose. First, specialization establishes goals and provides incentive for continuing legal education which should improve the competency of the bar; second, it identifies for people both within and without the profession those lawyers who have demonstrated special knowledge, skills, and proficiency in a specific field. We firmly believe that The Florida Bar and this Court must responsibly move forward to assist the public in determining those individuals who are qualified specialists and not leave that role to telephone directory editors, voluntary professional groups, or to entrepreneurs with high-sounding specialty certificates and advertising techniques.

As to the first purpose, we recognize that neither the proposed plan for certification nor our present designation plan is a panacea for all the problems of incompetence in the practice of law. It must be understood that flagrant incompetence is more fundamental, and, in fact, results from a lack of professional integrity. Marvin E. Frankel, in an article entitled Curing Lawyers' Incompetence: Premium Non Nocere, 10 Creighton L.Rev. 613 (1977), stated: “The significant qualities distinguishing good from bad lawyers — and, thus, the areas for truly major concern about ‘competence’— are matters of character, judgment, wisdom, morals, and attitude, not the business of technical proficiency.” Technical proficiency does not protect the public from a lazy, ill-prepared, or dilatory lawyer. Technical proficiency without professional integrity still adds up to a bad lawyer, and neither the existing designation plan nor the proposed certification plan is going to ensure that professional quality. However, they are a step in the right direction. They should encourage lawyers to improve and maintain their competence in particular fields and provide a reasonably balanced method for the public to identify special competence.

We have concluded that a lawyer who has special training or has in some measurable way demonstrated special competence in a particular field of law should be able to properly advertise that fact to the public. See The Florida Bar re Amendment to the Florida Bar Code of Professional Responsibility (Advertising), 380 So.2d 435 (Fla.1980). The existing designation plan and new certification plan are directly related to lawyer advertising. The constitutional authority for lawyers to advertise was established in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), and Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), but those decisions allowed this state through this Court to reasonably regulate the advertising of the [1387]*1387quality of legal services to avoid deceptive or misleading claims. In Bates, the United States Supreme Court said a legal clinic could advertise the prices it would charge for routine legal services. In Ohralik, the Supreme Court held that the state may discipline a lawyer for soliciting clients for pecuniary gain under circumstances likely to pose dangers to the public. The Court concluded that the state may protect the public from solicitation that involves fraud, undue influence, intimidation, or overreaching.

This Court amended the lawyer code of professional responsibility of this state to comply with Bates and Ohralik. In so doing, we construed the holding in Bates and reiterated that “certain limitations on lawyer advertising are permissible. These limitations included the following: (1) false, deceptive, or misleading advertisements are subject to restraints; (2) claims as to the quality of services may be so misleading as to warrant restriction; (3) a warning or disclaimer may be required to ensure that consumers are not misled and (4) reasonable restrictions on the time, place, and manner of advertising may be appropriate.” Advertising at 436.

Designation and certification both address the quality of legal services for the benefit of those persons who must obtain those services. With lawyer advertising, the existing designation plan, and the adoption of certification, there will be three methods of communication available to aid the public in selecting a lawyer of their choice to perform necessary services. The methods and their operational significance may be summarized as follows:

Advertising. Any lawyer may advertise his name, address, telephone number, the kind of legal services he performs, and state the routine cost of these services. An attorney may not mislead or deceive the public and, in particular, may not advertise any self-serving special qualifications or quality of service.

Designation. After three years of practice, a lawyer may designate up to three areas of specialty practice and thereby commit himself to a mandatory continuing legal education program for each designated area to assure maintenance of competency. Compliance with the continuing legal education requirements is mandatory, periodically reviewed, and must be adhered to for retention of specialty designation. In accordance with the plan, a lawyer may publish and advertise that he is “Qualified in (permitted area) under the Florida Designation Plan.”

Certification. After five years of practice, a lawyer may apply for certification in certain specialty areas, limited as presently proposed to civil trial advocacy and taxation. Certification in these areas is obtained only upon a demonstration of specialized knowledge through (a) examination or graduate academic work, (b) experience in the specialty area, and (c) peer review. After initial certification, periodic review is required. Under the plan, a lawyer may publish that he is a “Board Certified (area of specialty) lawyer.”

These three categories allow the practicing lawyer the flexibility to advise the public of his desired practice areas and of any special professional qualifications in certain areas that he may have.

In considering the certification plan submitted, we find the administrative structure cumbersome and not sufficiently interrelated with advertising and designation.

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Related

Florida Bar
548 So. 2d 1120 (Supreme Court of Florida, 1989)
The Florida Bar re Amendment to the Bylaws Under the Integration Rule
487 So. 2d 22 (Supreme Court of Florida, 1986)
Florida Bar Re Amendment to the Bylaws Under the Integration Rule
400 So. 2d 942 (Supreme Court of Florida, 1981)

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Bluebook (online)
399 So. 2d 1385, 1981 Fla. LEXIS 2691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-bar-re-amendment-to-integration-rule-fla-1981.