New Lawyer Advertising Rules Approved!

As if things were not confused enough, the Florida Supreme Court has approved new lawyer advertising rules that have been in the works for a long time, with two modifications, and over the dissents of Justices Parienti and Canady.

Here's a taste of the majority opinion:

Next, we address a concern expressed by commenters regarding the proposed requirement in new rules 4-7.13 and 4-7.14 that certain statements made in attorney advertisements must be “objectively verifiable.” Commenters assert that this requirement is unclear. We disagree. If the attorney can show, by objective facts, that the statement is true, then he has presented an objectively verifiable statement in the advertisement. On the other hand, making a subjective statement such as “the best trial lawyer in Florida” is a misleading statement that fails to meet the requirement because it is neither objective nor verifiable. The advertising statement must be supported by verifiable facts.

So now you need to assign an associate at your law firm to figure out what this all means and how this applies to your website.

Justice Pariente's dissent makes the distinction between traditional lawyer advertising and lawyer websites:

In my view, the potential harms and dangers presented by traditional advertising require closer oversight, whereas the inclusion of lawyers’ websites and information upon request as part of the lawyer advertising restrictions is unnecessary and has the potential to result in a chilling effect. For these reasons, I would exempt websites and information upon request from advertising restrictions, and I question whether the entire revamped approach to regulating traditional forms of advertising is a beneficial change.

 . . . .

In contrast to the surveys about the effects on the public of traditional lawyer advertising, there is absolutely no evidence that lawyers’ websites have contributed to the decline in the way the public views lawyers—or been the subject of abuse by the thousands of lawyers who utilize websites. It is clear from the date of these surveys that websites were not considered. Rather, a well-done and comprehensive website could give a potential client an abundance of meaningful information from which to make a decision as to that particular lawyer or law firm.

Or a good press release!

Volunteer on Election Day!

Justices Quince, Pariente, and Lewis need your help on election day, according to the DCBA:

As you know, Justice R. Fred Lewis, Justice Barbara Pariente and Justice Peggy Quince are asking Floridians to vote "yes" in this election to retain them on the Florida Supreme Court. While the DCBA does not take any position on ballot issues, many of our members have asked us how they can support the three Justices in this crucial election.

The campaigns are looking for at least two volunteers per shift to pass out literature at early voting locations and on election day. If you are interested in volunteering, please contact the following coordinators today:

Nadean Stone (305) 374-6366 nadean@ratzanlawgroup.com  

Anna Quintana (305) 371-3666 aquinta@fdlaw.net

Ana Gomez (305) 371-3111 agomez@goldfarbpa.com

In other news, Palm Beach County Judge Barry M. Cohen is in trouble for speaking his mind about our drug laws:

The Judicial Qualifications Commission panel filed formal charges with the Florida Supreme Court on Wednesday, alleging that Judge Barry M. Cohen has abused his position by using it as a "bully pulpit" and undermined his impartiality through his comments. The panel cited Cohen's comments from the bench, in written orders and at public forums.

Cohen has been accused of saying, among other things, that minorities are disproportionally arrested and jailed for drug trafficking, law enforcement officers may be motivated by the race or status of suspects and blacks do not feel free to exercise their constitutional rights in the county.

The judge's lawyers linked the allegations against Cohen to recent attacks on the judiciary they say are threatening its independence.

"Judge Cohen will vigorously defend himself against allegations which infringe on the ability of judges to perform their duties in an independent manner," wrote attorneys Scott Richardson and Donnie Murrell.

They added that Cohen is confident a full airing of the allegations "will demonstrate he has performed his duties ethically and honorably."

Ok, what the Judge said seems pretty accurate to me -- is truth a defense?

Finally, in more election-related news, I see Gerry Richman is going after the Palm Beach County GOP chair for what he calls a "frivolous" lawsuit against commission candidate David Levy:

Attorney Gerald F. Richman, who represented Levy in the case, called the suit “frivolous,” and said that Levy has asked a judge to force Dinerstein to pay his attorney’s fees. He pointed to a state law that allows defendants to recoup their fees if a judge finds that a lawsuit is not “supported by the material facts.”

Richman had argued that Levy was not required to get his financial disclosure form notarized.

“The point of all of this is, this is absolute evidence that the lawsuit was frivolous,” Richman said. “It basically shows to me that this was a political ploy to cause David Levy to undergo expenses. I would call it an act of desperation on the part of the party.”

Circuit Judge Catherine Brunson last week denied Dinerstein’s request for an injunction to block Levy from the ballot. Dinerstein sued Levy and Supervisor of Elections Susan Bucher last month, alleging that the disclosure form, filed in June, was not stamped by a notary. Notary Marilyn Jacobs signed and dated the form but did not put her seal on it.

Dodger Arp, Dinerstein’s attorney, said the suit was legitimate.

“We don’t have a frivolous lawsuit,” Arp said. “My clients decided that they have had their day in court, we decided to drop it. The court has spoken and we respect that.”

Dodger Arp -- is that a real name?

Ok I checked, yes it is, a former Marine to boot.

SHOCKER Federalist Society Report: Embattled FL Supreme Court Justices Are Principled!

I'm more of an ACS kind of guy, but I do have to give the Federalist Society props for their own integrity in knocking down this ludicrous campaign to remove Justices Quince, Lewis, and Pariente:

A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.  Download Federalist Society

“There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court,’’ wrote Florida International University law professor Elizabeth Price Foley after analyzing nine controversial cases since 2000. “There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled.”

Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings “are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning.”  Opponents who want to accuse them of judicial activism, she said, are “going to have a hard time making that label stick.’’

Oh don't be so sure, Professor -- since when have facts stopped the Koch brothers?

PS --  The endorsements keep rolling in:

Show Your Support Tonight for Justices Quince, Pariente, and Lewis!

Sorry to keep beating the drum about this issue, but when you read a report like this from the NYT it just ticks you off:

“I think it’s a mistake for a party, as a party, to state a position that a certain judge should be thrown out, because then you are introducing partisanship into a system that is supposed to be nonpartisan,” said Bob Martinez, a prominent Republican lawyer who was once the United States attorney for the Southern District of Florida. “And when you have elected officials, on the right or left, criticizing judges publicly it can become very dangerous and it can undermine the public’s faith in the judiciary.”

Democrats say the campaign is really about giving Gov. Rick Scott, a Republican, the chance to appoint three new justices. The Florida Legislature also wants greater control of the judiciary — an effort that began last year with House Speaker Dean Cannon and is continuing with a proposed amendment on the ballot this year.

“All of this is an attempt to hijack the court,” said Dick Batchelor, a Democrat and former State House member who is working with Defend Justice From Politics, one of several counteroffensives. 

“This is all about raw politics. It has nothing to do with jurisprudence.”

Americans for Prosperity, an organization founded by the Koch brothers, recently joined in the battle and began broadcasting television advertisements in several cities highlighting the health care amendment ruling. The group also plans to highlight other cases. 

Tell the Koch brothers to take their toilet paper money elsewhere and leave our courts alone.

The big event is tonight from 5:30 to 7:00 at the downtown Intercontinental Miami, or you can contribute online: 

www.VoteYesJusticeLewis.com

www.VoteYesJusticePariente.com

www.VoteYesJusticeQuince.com

Did You Know a Few Billionaires Want to Rejigger the Florida Supreme Court?

 If you're in the legal biz it's impossible to not be aware of the Koch brothers' campaign to unseat Justices Lewis, Pariente, and Quince. 

But there's also this bugaboo up for a vote in November:

The GOP-led Florida Legislature also put a state constitutional amendment on the ballot that experts say would politicize the Florida Supreme Court.

Amendment 5 would change the Florida Constitution to say that the Florida Senate has to confirm state Supreme Court nominees. If passed, it would also allow the Florida Legislature to repeal any court decision with only a majority, which is 50 percent plus one. Right now, the legislature needs a supermajority.

Oy veh, do you think Florida would have integrated the public school system if the Legislature could have repealed that ruling with a 50 percent plus one vote?

A few newspapers have also weighed in:

"The three Supreme Court justices up for review are under attack by a conservative political action committee which declines requests for interviews...
That is the kind of politics that merit retention was designed to keep away.
For that reason, we strongly recommend voting "yes'' to retain Justices R. Fred Lewis, Barbara Pariente and Peggy Quince — all of whom passed muster in a Florida Bar poll with approval ratings of at least 89 percent."

– Naples Daily News, 9/26/12

"The three Florida justices are certainly competent. A poll of Florida Bar members showed that 92 percent supported retaining Mr. Lewis, 89 percent Ms. Pariente and 90 percent Ms. Quince. And there’s no question of ethical impropriety.
Rather, it’s pure politics.
Let’s hope voters understand what’s at stake here. Let’s hope they vote to retain the three Supreme Court justices.”

– Tallahassee Democrat, 09/25/12

Where did all the Jeb Bush Republicans go?

(I'm excluding Raoul Cantero's leadership on this issue -- major props to the guy for taking this on!)

A Few Good Men.

This shouldn't have been necessary, as every lawyer deserves to be paid for their good work, but perhaps that is what makes the sacrifice especially noteworthy:

An internal squabble between the lawyer representing Eric Brody and his former employer is behind the sudden decision to scrap all fees.

“By declining all fees it will make sure that Eric doesn’t have to pay $1 million to a bunch of rich lawyers that never did anything” on the case, said Lance Block, Brody’s attorney. Block said his former employer, West Palm Beach law firm of Searcy Denney Scarola Barnhart & Shipley, hired a lobbyist to try and collect part of the $10.75 million payment.

The dispute over fees is recounted in more detail here.

In other news, the Florida Supremes have approved the House redistricting plan and rejected the Senate map.

Very interesting 200+ page opinion from Justice Pariente (with cool embedded color maps!).

Remember to retain these judges!