Mr. Davis will present HR: The “Insurance Policy” against expensive litigation and lower profits. His presentation is scheduled to be held on Monday, August 30, 2010 at 1:30 pm – 2:30 pm.

Mr. Chanfrau will present OSHA in a Changing World: New Compliance Directives You Need to Know. His presentation is scheduled to be held on Tuesday, August 31, 2010 at 10:30 am – 11:30 am.

Both are honored to have been called upon to play an important role in the learning experience of the attendees and to help in serving their educational needs.

In particular, we focused our inquiries on two sites: LinkedIn and Avvo. LinkedIn attracts users from virtually all professions and industries, while Avvo is exclusively for lawyers; however, the two use a similar “recommendations” feature to bolster the profiles of the users. Avvo even goes so far as to tie the rating system it uses for each profile in part to the number and tone of “peer recommendations” from other lawyers.

However, since anyone can access the profiles of lawyers on either LinkedIn or Avvo, we were concerned in particular with two of the guidelines listed in the Rules of Professional Conduct of The Florida Bar:.

• Does the advertisement contain any references to past results? Rule 4-7.2(c)(1)(F).
• Does the website contain any statements that describe or characterize the quality of the lawyer’s services?  Rule 4-7.2(c)(2).

Looking at some of the recommendations and testimonials posted on various lawyer profiles on both of these sites – whether from clients or professional peers – we saw many that contained “references to past results” and even more that most definitely did “describe or characterize the character of the lawyer’s services.”

We called and spoke at length with an advisor on ethics in advertising at the Florida Bar. According to our source:

“The Board of Governors has said if the attorney participates in the Avvo rating service, and the attorney provides email addresses of clients [or professional peers] and asks clients to rate them, then the attorney could get in trouble for that. But, if these people are going to the site and posting things and attorney has not controlled what they wrote [or even the fact that they wrote] then the attorney will not be held responsible.”

Similar to LinkedIn, Avvo has a function whereby a member attorney can send a mass email to clients, asking them to “please rate me.” Avvo also has the additional feature of allowing the member lawyer to contact other lawyers specifically, asking for the same favor (Note: It is only these peer-to-peer recommendations that affect the member attorney’s “rating” on Avvo).

However, on both LinkedIn and Avvo, a client, business associate, or – in Avvo’s case – another attorney, can also opt to make a recommendation, using the sites’ recommendation feature, without any solicitation or request to do so from the attorney/member.

The distinction, according to the Florida Bar, lies in whether or not the attorney did the former scenario – requested the recommendation – or was a passive participant in the latter; i.e. someone took it upon him or herself to write the recommendation.

Lawyers who – whether on LinkedIn, Avvo, or any other similar profile-posting site, send any traceable request saying “please rate me” will be held responsible for all comments that are made on the site as a result of that request.

This case is shared by Sam Frankel, an associate with Legal Solutions Group.   It highlights the danger of not seeing the big picture. It may be that it is better to accept compensability of an injury where the alternative, a tort claim with pain and suffering, can vastly outstrip the dollar value of the compensation claim.

Every situation is different, but the point is that employers should think strategically about the claim rather than have a knee jerk reaction because sometimes, it is better to accept compensability than to deny it.

The entire ruling is here.

As it happens, Mr. Frankel has been working on a similar compensation and federal employment law case this week with Legal Solutions Group partner Jose Chanfrau.

As the Third District Court of Appeals in Florida (which includes Miami, FL) ruled,  in order to prevail on a retaliatory discharge claim under section 440.205 of the Florida Workers’ Compensation Laws, Chapter 440 of the Florida Statutes, the employee must prove:

(1) he engaged in a statutorily protected activity;

(2) an adverse employment action occurred; and

(3) the adverse action was causally related to the employee’s protected activity.

In this case the Court concluded that “While Ortega may not have been fired “en haec verba,” there was sufficient evidence of  retaliation sufficient to overcome a summary judgment where there were contradictory statements as to why the plaintiff was discharged particularly where the discharge ocurred close to the time of the injury.

One possible answer to this problem is for the employer to adopt a clear policy authorizing the termination of employees who are unable to work for a period of time and apply the policy consistently without the mixed messages that occurred in this case.

Read the entire ruling here.

At Legal Solutions Group, we assist lawyers to be in compliance with all rules regarding the rapidly evolving use of social media tools. Founder and CEO Marty Davis has studied the issue very carefully, and has been presenting on this issue at various legal organization functions in South Florida.

“As state Bar associations are currently grappling with the increasing number of lawyers who are establishing an online presence across many platforms as a means to promote their practices and firms,” commented Davis. “Legal Solutions Group remains constantly updated with the ruling or decisions from these Bars as they occur. By doing so, we help other law firms understand the rulings and how they apply to them, as well as help ensure the firms or solo practitioners become compliant with them.”

We will be translating overview and general service information in the first phase of the project, and when these pages are live, we will provide links right from the home page.

Please contact us today if you desire any specific firm information in these languages.

The Bar’s Standing Committee on Advertising on December 29 approved guidelines to help lawyers meet the Supreme Court’s new rules regulating the content of lawyers’ Web sites. Chair Adam Schwartz said the guidelines allow lawyers to use disclaimers to designate parts of their Web sites as “information upon request” zones, which would mean that those sections would not be subject to the lawyer advertising rules. Schwartz said the guidelines were carefully drafted to balance lawyers’ First Amendment rights to advertise their services with the committee’s duty to protect the public.

The activity follows a ruling by the Supreme Court in November that all Bar advertising rules, except the requirement they be submitted to the Bar for review, apply to lawyer Web sites. The court’s ruling means several common attributes of attorney Web sites — including testimonials, statements that characterize the quality of work, or information about past results — are not allowed under the revised Web site rule.

The guidelines from the Florida Bar are available below:

“Lawyer and law firm websites must comply with the general lawyer advertising requirements set forth in Rule 4-7.2, Rules Regulating The Florida Bar. Although websites must comply with these requirements, they are not required to be filed with The Florida Bar for review. Rule 4-7.8(f), Rules Regulating The Florida Bar. The Florida Bar Board of Governors has adopted a policy that The Florida Bar will not accept voluntary filings of the entire contents of a lawyer or law firm website, although staff of the Ethics and Advertising Department will respond to specific questions involving a specific phrase or image to be included on a website. To make such an inquiry, please call the Ethics and Advertising Department at (800) 235-8619.

“Many law firm websites may contain information that is prohibited by the lawyer advertising rules, such as testimonials or endorsements from clients and others, past results of the law firm, and statements characterizing the quality of legal services (for example, the firm offers high quality legal services, or excellent legal services).

“The Standing Committee on Advertising has determined that a lawyer or law firm can create a portion of the website which contains information that can be provided only at the request of a prospective client, and is, therefore, not subject to the lawyer advertising rules under Rule 4-7.1(f). Testimonials and endorsements, past results, and statements characterizing the quality of legal services may be included in such a section if the information provided is truthful and not misleading, either by itself or in the context in which it is given. If testimonials or past results are provided, sufficient information about the matter also must be provided to allow the consumer to evaluate the testimonials or results. Testimonials and past results may be included only with the informed consent of the client to which the matter relates (see Rule 4-1.6(a), Rules Regulating The Florida Bar). In order to be considered information that is given at the request of a prospective client, the information must be accessible only after viewing a disclaimer page and making an affirmative acceptance that the viewer has received the disclaimers provided below.

“The disclaimer page must clearly and prominently indicate the following:

• the type of information that will be viewed;

• that the information is not reviewed or approved by The Florida Bar.

“If past results are provided, the disclaimer page must indicate:

• that a prospective client’s facts and circumstances may differ from the matter in which results have been given;

• whether all results are provided;

• that the results are not necessarily representative of results obtained by the lawyer; and

• that every case is different, and each client’s case must be evaluated and handled on its own merits.

“If testimonials are provided, the discliamer page must indicate:

• that a prospective client’s individual facts and circumstances may differ from the matter(s) in which the testimonials are provided;

• whether testimonials of all clients are provided; and

• that the testimonials are not necessarily representative of all clients’ experience with the lawyer.

“On the disclaimer page, the viewer must acknowledge receipt of the information before being given access to pages with information including past results, testimonials, or statements characterizing the quality of legal services. The lawyer should not require that viewers provide information about themselves in order to access the information.

“Lawyers may use a disclaimer page, a pop-up, or any other technological mechanism as long as the above guidelines are followed, and the above information cannot be accessed without viewing the disclaimer page and making an affirmative acknowledgement of receipt of the disclaimer. For example, the website must be set up in such a way that the above information cannot be viewed as a result of a general search engine or site search without displaying the disclaimer page each time.

“Alternatively, lawyers may provide a section of the website in which a viewer, at the viewer’s option, may provide contact information and make a specific acknowledgement that the viewer would like to receive specific information about the lawyer or law firm. After receipt of the contact information and acknowledgment, the lawyer or law firm may send the viewer information by either e-mail or regular U.S. Mail, as long as the information is truthful and not misleading, either by itself or in the context in which it is given. The lawyer or law firm must provide the same disclaimers to the recipient and follow the same guidelines noted above.”

We are now offering Accounts Receivable Recovery Services for foreign produce suppliers, and expanded Workers’ Compensation legal services.

Contact us today for a consultation on these or any other of our services.

We look forward to a year of helping clients through our business consulting and legal consulting services.

Our advice: Keep it close to your vest!

Read the entire ruling here.