Florida Bar’s Board of Governors will vote on substantial revisions to Bar rules related to lawyer referral services

Hello everyone and welcome to this Ethics Alert blog which will discuss the proposed revisions to the lawyer referral Bar rules which would change the names to “matching services” and “qualifying providers” and substantially revise the existing referral rules.  The proposed rule revisions are here:  http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/D8FFF4171E28E5C085257FA300648D6B/$FILE/4-7.22%20et%20al%20legislative.pdf?OpenElement

The proposed rules address for-profit companies that link lawyers with consumers needing legal work and are designed to prevent fee splitting between those companies and lawyers and protect the public from deceptive, misleading, or false advertising by those companies.  Under the proposed amendments, any private entities that connect consumers looking for legal services with lawyers are called “qualifying providers” regardless of whether they are a “traditional” referral service (ASK-GARY, 411 PAIN) or a technology-based provider (AVVO, LegalZoom).

The Florida Bar’s Board of Governors (BOG) received an updated report on May 20, 2016 from Carl Schwait, chair of the Board Review Committee on Professional Ethics.  That BOG committee was working on the rules with the BOG’s Technology Committee, chaired by board member John Stewart, since last year when the Florida Supreme Court rejected the Bar’s proposed rule amendments on for profit lawyer referral services.

The BOG is scheduled to vote on the proposed amendments at its July 29, 2016 meeting.  If approved, the amendments must be filed with the Supreme Court by August 15, 2016 and the Court must also approve and issue an Order implementing them.

The Florida Bar’s website has a page summarizing the proposed revisions to the rules and also has a frequently asked questions section and comparison chart.  The link to the page is here:  http://www.floridabar.org/proposedlrsamend#Overview and the summary of the proposed rule changes is below:

OVERALL CHANGES TO RULE

Terminology

“Qualifying Provider” instead of “lawyer referral service”

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Broader definition of “qualifying provider” including:

Directories

On-line matching services

Group or pooled advertising programs

Tips or leads programs

REQUIREMENTS RETAINED

Ads for qualifying providers must comply with lawyer advertising rules

Lawyers may not divide fees with qualifying providers (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must match consumers only to those authorized to provide the services in Florida

Qualifying providers must respond to official bar inquiries within 15 days

Qualifying providers may not state or imply bar endorsement (except non-profit Florida Bar and voluntary bar lawyer referral services)

Qualifying providers must use their actual names or a registered fictitious name

DELETED REQUIREMENTS

Malpractice insurance

Lawyer referral services and other qualifying providers find it difficult if not impossible to obtain malpractice insurance that covers lawyers who are in different firms

Most lawyers are not required by bar rules to carry malpractice insurance (currently only lawyers participating in either for-profit or Florida Bar or voluntary bar lawyer referral services or Florida bar-approved group or pre-paid legal insurance plans are required to carry malpractice insurance)

Disclaimer in all ads that it is a lawyer referral service

Some states prohibit for-profit lawyer referral services

States that prohibit for-profit lawyer referral services define them differently than Florida – some on-line matching services are not considered referral services in some states

Requiring the disclaimer creates problems in states where lawyer referral services are prohibited

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Disclaimer in all ads that lawyers pay to participate

It is obvious to most consumers that they are for-profit

Some qualifying providers do not charge lawyers to participate, but make money by selling advertising space or by charging consumers to participate

Requirement that all services provide The Florida Bar quarterly with names of all those authorized to act on behalf of the service

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

CHANGED REQUIREMENT

Report to the bar of the names of all participating lawyers changed from quarterly to annual

Fewer requirements allow Florida Bar members to participate with more qualifying providers without having to be concerned that they cannot meet bar requirements

Qualifying providers are required to respond to official bar inquiries, so if the bar needs the information, the bar can request it at that time

NEW REQUIREMENTS

Qualifying providers:

may not require or pressure the lawyer to provide cross referrals

must give participating lawyers documentation of compliance with bar rules

must disclose participating lawyers’ location by city, town or county when the referral is made

may not use a name or otherwise imply to the public that the qualifying provider is a law firm, can practice law or directly provide legal services

REQUIREMENTS CONSIDERED BUT NOT RECOMMENDED 

Florida Supreme Court requested amendment that requires that lawyer referral services be owned or operated by a Florida Bar member

The BRC and Technology Committees discussed extensively and voted not to include the proposal

The Court already has regulatory authority over participating lawyers

Lawyers will become scapegoats for unscrupulous services

Services who are in compliance should not be penalized

Rules should be no more restrictive than is necessary to protect the public and ensure lawyer’s adherence to professional requirements

Defining ownership and operation is difficult and no parameters have been provided by the Court

FILING

Amendments will be considered for final action by The Florida Bar Board of Governors at its July 29, 2016 meeting in Miami Beach Comments may be sent to eto@floridabar.org – if filed with the bar by June 30, they will be provided to the board for its meeting

Petition to amend the rule will be filed with the Florida Supreme Court August 15, 2016

Comments may be filed directly with the Florida Supreme Court between August 15, 2016 and September 15, 2016

Bottom line:  If these rules are approved by the BOG (and the Florida Supreme Court), they will substantially change the landscape for lawyer referrals and the requirements for providers and lawyers to participate in “matching services”; however, although the Florida Supreme Court strongly suggested that only lawyers own the services, the rules do not limit ownership nor do they limit the referrals only to lawyers.

Be careful out there!

 Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Please note:  Effective June 27, 2016, my new office address is:

29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761

E-mail addresses and telephone numbers below will remain the same. 

My main office number, (727) 799-1688, is temporarily unavailable due to a telephone company issue.  Please call (727) 286-6625 (my rollover number) if you need to contact me immediately.   Thank you. 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Florida Bar, Florida Bar 2016 Lawyer referral rule revisions, Florida Bar lawyer referral rule revisions, Florida Bar matching services, Florida Lawyer advertising rules, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Referral Services

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