Marketing Suit Against McFarlane & Dolan Allowed To Proceed

, Daily Business Review

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Venus Caruso
Venus Caruso

Broward Circuit Judge Carlos Rodriguez on Friday denied a motion by an insurance defense law firm to strike a deceptive trade lawsuit filed by a workers' compensation claimant who was offended by the firm's online pronouncement that it litigates "with a baseball bat."

Tim Neal, an employee with a franchisee of Stanley Steemer Carpet Cleaner Co., claimed the employer tried to intimidate him when he hired Boca Raton attorney Robert Winess to help process his claim and ensure he got treatment for a back injury.

The franchisee, Dean Enterprises Inc., hired McFarlane & Dolan, a statewide insurance defense firm with offices in Coral Springs.

At the time, McFarlane & Dolan had a website that showed founding partner William McFarlane III holding a baseball bat. A marketing statement said the firm "aggressively" defends insurance companies, and "we litigate claims with a baseball bat."

The firm site also said its philosophy was to presume that "a claim is fraud until proven otherwise."

Neal was shown the website by his attorney and said he was outraged by it. On April 19, he filed a lawsuit claiming the advertising violated Florida's Deceptive and Unfair Trade Practices Act and asked for injunctive relief.

McFarlane sought an opinion from The Florida Bar about the website content. On May 1, Bar ethics counsel Elizabeth Clark Tarbert concluded the bat and the reference to it don't comply with Bar rules.

Advertisements cannot include statements or dramatizations that state "or imply that the lawyer will use tactics that are prohibited by the Rules of Professional Conduct," Tarbert said.

She went on to say a reference to claims being "fraud until proven otherwise" violated the rules because a lawyer can't advertise with statements that are factually or legally inaccurate.

The law firm retooled its website and removed the offending statements, and Neal's employer dropped the law firm as its counsel.

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