Category Archives: Florida Lawyer Referral Services

Florida Supreme Court dismisses Florida Bar’s petition proposing substantial revisions to lawyer referral service rules

Hello everyone and welcome to this Ethics Alert Update which will update my August 1, 2016 Ethics Alert and will discuss the recent Florida Supreme Court Order (May 3, 2017) dismissing the Bar’s petition for approval of the proposed substantial revisions to the Bar Rules related to lawyer referral services.

The proposed rules would have substantially revised the current rules, changed the name of the referral companies to “matching services” and “qualifying providers”, specifically prohibited fee splitting and deleted the disclaimer that the entity is a lawyer referral service.  The proposed rules would not have limited ownership to lawyers only or referrals to lawyers only.

The case is: In Re: Amendments to the Rules Regulating The Florida Bar-Subchapter 4-7 (Lawyer Referral Services, Case No.: SC16-1470 and the Supreme Court’s Order May 3, 2017 is here:  https://efactssc-public.flcourts.org/casedocuments/2016/1470/2016-1470_disposition_138549.pdf

Under the proposed amendments, which were approved by the Florida Bar Board of Governors in 2016, any private entities that connect consumers looking for legal services with lawyers would have been called “qualifying providers” regardless of whether they were “traditional” referral services (such as ASK-GARY or 411 PAIN) or a technology-based provider (such as AVVO or LegalZoom).

The Florida Bar’s website has a page summarizing the proposed rule revisions as well as a frequently asked questions section and comparison chart.  The link to that page is here:  http://www.floridabar.org/proposedlrsamend#Overview.

The May 3, 2017 Florida Supreme Court Order states:

Previously, in In re Amend. to Rule Reg. The Fla. Bar 4-7.22—Lawyer Referral Services, 175 So. 3d 779, 781 (Fla. 2015), the Court rejected amendments to Rule Regulating the Florida Bar 4-7.22 proposed by The Florida Bar and directed the Bar to propose amendments that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.” In this case, the Bar proposes amendments to rule 4-7.22 that do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar. (emphasis supplied).

The Court having considered the Bar’s prior petition, the amendments proposed in this case, the comments filed, the Bar’s response, and having had the benefit of oral argument, the Bar’s petition in this case is hereby dismissed without prejudice to allow the members of this Court to engage in informed discussions with the Bar and those who are in favor or against the proposed regulation of matching and other similar services. The Court lacks sufficient background information on such services and their regulation at this time.

No rehearing will be entertained by this Court.

Bottom line:  As I previously stated, if approved by the Florida Supreme Court, the proposed revisions would have substantially altered the rules for lawyer referral services; however, the proposed rules would not have limited ownership to lawyers nor referrals only to lawyers.  This Order makes it clear that the that the proposed rules “do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include ‘matching services’ and other similar services not currently regulated by the Bar.”

The Florida Bar will now ponder the language of the Supreme Court’s Order in considering potential future proposed lawyer referral rule revisions.  Stay tuned…

…and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Supreme Court issues opinion stating that lawyers should be prohibited from accepting referrals from non-lawyer owned referral services

Revised with corrected link to Supreme Court opinion only.  I apologize for any inconvenience.

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which rejected The Florida Bar’s proposed lawyer referral rules and stated that lawyers should be prohibited from accepting referrals from non-lawyer owned referral services.  The opinion is In Re: Amendments to Rules Regulating The Florida Bar 4-7.22- Lawyer Referral Services, No. SC14-2126 (September 24, 2015) and the opinion is here: http://www.floridasupremecourt.org/decisions/2015/sc14-2126.pdf

According to the opinion, a Special Committee on Lawyer Referral Services was created after “the recent and dramatic growth of for-profit lawyer referral services, along with a corresponding increase in public concern as to both the misleading nature of the activities of these services and the potential harm they may cause.”  The Special Committee issued a report, which was modified by the Bar’s Board of Governors, which would have allowed lawyers to receive referrals from for-profit lawyer referral services which were owned by non-lawyers and which made referrals to both lawyers and other providers, including medical providers.

The opinion also states that the restriction of ownership only to lawyers “is absolutely necessary” to protect the public from referral services that “use lawyers to direct clients to undesired, unnecessary or harmful medical treatment or services” and such a rule would also “prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.”

The opinion’s full conclusions are below:

We have carefully reviewed the final report of the Special Committee and conclude that the public is at significant risk from for-profit lawyer referral services that also refer clients to other businesses. We recognize that the anecdotes presented in the final report do not represent every non-lawyer-owned, for-profit referral service; however, the potential harm is too great for us to approve the amendments proposed by The Florida Bar. These amendments would not cure the multiple concerns highlighted by the Special Committee, but would allow the troubling incidents discussed in the final report to continue. The dangers that nonlawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar.

Accordingly, we reject the current petition and instruct The Florida Bar to propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. We further instruct the Bar to review any other rules or regulations that address lawyer referral services to determine whether new rules are necessary to implement our direction today. Based upon this review, the Bar may conclude that amendments to, or repeal of, other rules are required. While the action we take today may be viewed by some as severe, we conclude it is absolutely necessary to protect the public from referral services that improperly utilize lawyers to direct clients to undesired, unnecessary, or even harmful treatment or services. Our action today will also prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.

The Florida Bar was ordered to submit a new petition on or before May 24, 2016.

Bottom line: This opinion may very well be the beginning of the end of non-lawyer owned for-profit lawyer referral services in Florida.  The Florida Bar will now prepare and file revised proposed rules in compliance with the opinion’s suggestions/mandate and file the rules with the Court for review.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

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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The Florida Bar’s Standing Committee on Advertising opines that lawyers may join business networking organizations and that solo lawyers may refer to themselves as ‘we’ in advertising

Hello and welcome to this Ethics Alert which will discuss the recent article in The Florida Bar News which provides information about the recent decisions of the Florida Bar’s Standing Committee on Advertising (SCA) which overturned Bar Advertising staff opinions and opined that lawyers may join an organization that promotes networking between professionals as long as the lawyer does not personally solicit cases or make referrals to another professional as a quid pro quo for getting referrals and that lawyers may refer to themselves as “we” in advertisements.

The SCA met on June 27, 2013 in conjunction with The Florida Bar Convention in Boca Raton, Florida.  One of the issues on the SCA’s agenda was whether lawyer participation in the networking organization, Business Network International (BNI).  Staff Counsel drafted an informal opinion finding that participation in the networking organization would violate the Bar Rules, although a majority of the Bar staff believed that membership in BNI would not violate the Bar rules.

The Bar Ethics and Advertising Counsel stated that the staff’s concerns were that there is a potential for solicitation and a potential for conflicts of interest if a lawyer is referring to another person whom they met through BNI which might not in the client’s best interest, but would in the lawyer’s personal interest because the lawyer may receive more referrals.   Another Bar concern was whether BNI operated as a de facto referral service, which would require it to comply with Bar lawyer referral service rules before lawyers could join a BNI chapter.

The author of this Ethics Alert appeared at the SCA meeting representing the lawyer who appealed the staff opinion and argued that BNI was not a referral service but akin to a civic group such as the Rotary Club, where lawyers might receive referrals by becoming members and that it is not unethical to belong to those groups.  In addition, the BNI rules specifically permit its members to follow the requirements of the ethics rules which govern their professions, including lawyers.  The Chair of the SCA voiced his concerns about the local chapter in his area; however, after discussion, the SCA voted unanimously to reverse staff and issue an opinion that joining a BNI chapter does not violate Florida Bar rules as long as the lawyer does not solicit cases or make referrals to another professional as a quid pro quo for obtaining referrals from that individual.

With regard to the issue of whether a sole practitioner may use the word “we” in advertisements, Bar Advertising Counsel reminded the SCA that the Bar’s Board of Governors had previously set a policy that sole practitioners cannot refer to themselves as “we” in an advertisement since it implies more than one lawyer works at the firm; however, notwithstanding the BOG policy, the SCA voted unanimously to overturn Bar staff’s opinion that the attorney’s advertisement violated the Bar Rules and issue an opinion stating that this does not violate the Bar Rules; however, the decision will now be reported to The Florida Bar’s Board of Governors which could take steps to reverse it.

Bottom line:  If you belong to BNI or another professional networking organization, the good news is that you can stay a member, as long as you comply with the Bar Rules.  If you are not a member, you can certainly now join.  Also, according the SCA’s decision, a lawyer who is a sole practitioner may use the word “we’ in advertisements.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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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The Florida Bar’s Board of Governors to consider proposed revisions to lawyer referral Rule 4-7.22 at its July 26, 2013 meeting

Hello and welcome to this Ethics Alert which will discuss the Florida Bar’s Board of Governors scheduled consideration of, inter alia, proposed revisions to Rule 4-7.22, The Florida Bar’s lawyer referral rule, at its July 26, 2013 meeting at Amelia Island.

The BOG’s Review Committee on Professional Ethics has been looking at the recommendations of a Special Committee on Lawyer Referral Services since 2012. The BOG Review Committee voted to support several recommendations from the Special Committee to revise Bar Rule 4-7.22, including a potentially controversial revision which would prohibit lawyers from belonging to referral services which, in addition to lawyers, also refer callers for other professional services from the same incident as the one which resulted in the referral to the lawyer.  This proposed revision would primarily affect large referral services such as Ask Gary and 411-PAIN, which services refer callers for both medical treatment and legal assistance.

Additional proposed rule revisions would include a requirement that lawyers notify The Florida Bar of the referral services with which they participate, a requirement that a law firm designate a lawyer from that law firm to be primarily responsible for complying with the lawyer referral rules, language specifically prohibiting a lawyer or law firm from making the initial contact with a referred client, and a requirement that the lawyer or law firm disclose to potential clients that the lawyer or law firm pays to participate in the referral service.

Finally, under the proposed revisions, the lawyer or law firm would be prohibited from referring a client to another person, organization, or service in exchange for receiving a referral.  The portions of the lawyer referral rule which prohibit attorneys from participating in referral services that engage in direct or any other solicitation prohibited by Bar rules or that do not follow Bar advertising rules and other rule provisions would not be changed.

Bottom line:  If approved by the BOG and implemented by the Florida Supreme Court, these proposed rule revisions would add to the changes already made to the lawyer referral rule in the Court’s recent advertising opinion, which became effective on May 1, 2013.  If you have an opinion on these proposed lawyer referral rule revisions and would like to make your opinion known, you contact the Florida Bar Board of Governors member(s) in your area.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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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Florida Bar’s Special Committee on Lawyer Referral Services issues final report recommending enhanced regulation of lawyers who receive referrals from for-profit referral services

Hello and welcome to this Ethics Alert blog which will discuss the recent recommendation of the Florida Bar’s Special Committee on Lawyer Referral Services.  The Special Committee’s report is available on the Florida Bar’s website: http://www.floridabar.org.

The final report was released on July 26, 2012 and will be presented to The Florida Bar Board of Governors today; however, since this will be the first time that the report has been presented to the BOG, it is unlikely that it will act on the report at that time.  The Bar rules also state that “no action, report, or recommendation of any committee shall be binding upon The Florida Bar unless adopted and approved by the board of governors.”

According to the final report, “(t)he findings and conclusions of the special committee…compel the need for the implementation of changes to the Florida Supreme Court’s Rules Regulating The Florida Bar as they relate to lawyer referral services.  While recognizing that The Florida Bar presently does not directly regulate non-lawyer owned services, the committee determined that greater regulation of attorneys who participate in for-profit referral services is mandated as in the best interest of the public. During the course of the special committee’s deliberations, a variety of recommendations were considered, all of which addressed lawyer conduct while participating in for-profit referral services.”

The special committee made the following recommendations:

1.         A lawyer shall not accept client referrals from any person, entity or service that also refers or attempts to refer clients to any other type of professional service for the same incident, transaction or circumstance, and shall furthermore be prohibited from referring a client to any other professional service in consideration of the lawyer’s receipt of referrals from any lawyer referral service.  In making this recommendation, the special committee recognized its scope and potential impact on for-profit referral services. The special committee also recognized the potential legal implications of such a recommendation. Nevertheless, after consultation with outside legal counsel, the committee unanimously endorsed the recommendation.

2.         A lawyer receiving or accepting client referrals from a referral service shall register such referral service participation with The Florida Bar, including all referral services with which the lawyer participates. In addition, any such lawyer shall provide complete disclosures regarding the lawyer’s relationship with the referral service, ownership of the service, financial arrangements between the service and the lawyer, and the lawyer’s affirmation of compliance with all Bar rules regarding referral services. Such attorney registration shall require payment of a fee as may be determined by The Florida Bar.

3.         A lawyer participating with a referral service for the purpose of receiving or accepting client referrals must designate a lawyer within the lawyer’s firm to serve as the responsible party for the firm for all cases referred to the firm or any attorney in the firm by a referral service.

4.         A lawyer is prohibited from initiating contact with a prospective client referred by a referral service; all such contact must be initiated by the prospective client.

5.         A lawyer accepting referrals from a lawyer referral service shall provide complete disclosures to clients of their participation in referral services, such as either a revised or addendum to the Client’s Statement of Rights, notification in law firm reception areas and inclusion of the referral service participation in lawyer advertising.

6.         The Florida Bar shall implement enhanced disciplinary enforcement of its rules and regulations related to lawyers participating in referral services.

7.         The Florida Bar shall implement enhanced public education of its rules and regulations related to lawyers participating in referral services.

Bottom line:  As I have previously reported, this Special Committee has drawn wide attention and met on various occasions and accepted input from interested parties, including from representatives of the referral services, such as ASK GARY.

The  report urges that the Bar impose much stronger regulation of lawyers who are involved with for-profit referral services.  The major recommendations include prohibiting lawyers from accepting referrals from services which also refer individuals to other professionals, requiring lawyers to register his or her participation with The Florida Bar and make detailed disclosures regarding the lawyer’s relationship with the service, requiring lawyers to designate a responsible lawyer, prohibiting lawyers from initiating contact with the prospective referral, requiring lawyers to make full disclosures of their participation in the referral services to clients, implementing enhanced public education of the rules, and recommending that the Bar “implement enhanced disciplinary enforcement of its rules and regulations related to lawyers participating in referral services.”  If you would like to comment on the special committee’s  report, you should contact The Florida Bar in Tallahassee or your local Florida Bar Board of Governors member.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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The Florida Bar’s lawyer referral committee votes to recommend that lawyers be banned from participating in combined lawyer and medical (non-lawyer) referral services

Hello and welcome to this JACPA Ethics Alert which will discuss the May 4, 2012 meeting of the Special Committee on Lawyer Referral Services wherein the committee voted, inter alia, to recommend that the Bar rules be revised to prohibit lawyers from participating in combined lawyer/medical (or other non-legal) referral services.

As reported in the June 1, 2012 issue of The Florida Bar News, the special committee voted unanimously to recommend that lawyers be prohibited by rule from participating in combined lawyer/medical (or other non-legal) referral services.  The committee recommended the prohibition after receiving an opinion from outside Bar counsel Barry Richard indicating that it would not violate the U.S. Constitution or restraint of trade laws to impose such a prohibition.  The committee also voted to retain the requirement that lawyer referral services register with the Bar, but to include restrictions that would prohibit referral services to claim such registration means they are “Bar approved”.

Some of the committee members discussed concerns (which had been discussed at previous meetings) about potential conflicts when a lawyer represents a client who has also been referred to medical treatment at a facility in which the referral service has a financial interest.  This concern arises from the fact that, since lawyers who settle such a personal injury case are also expected to negotiate medical liens and bills incurred by their clients, these charges would potentially be owed to the entity affiliated with the lawyer referral service which sent the lawyer the case and from which the lawyer would presumably hope to obtain more referrals.

Another issue/concern discussed by the committee was that, since the committee is recommending that lawyers be required to report referral services with which they are affiliated, the requirement that the referral services to register may be redundant; however, since some services apparently use their registration with the Bar to claim that they are “Bar approved”, some committee members said it would be harder to keep track of the services and their compliance with Bar rules (including review of their advertisements) without the registration requirement.

The committee considered and approved (with 2 dissents) a motion to recommend that the referral services continue to be required to register with the Bar and pay a fee with the registration, continue to be required to disclose the names of lawyers participating in the service, continue to be required to comply with all Bar rules, be prohibited from using the fact that they are registered with the Bar in any advertising, and be removed from the list of registered referral services if a complaint about their activities has been found to be valid.

The committee also discussed, but did not vote on, other issues and topics, including lawyer referral service fees and a potential joint legal-medical committee to look at referral services and the relationships between doctors and lawyers during the process of referring clients and patients to each other.

The two recommendations approved at the May 2012 committee meeting will be added to the four made earlier this year by the special committee, which were:

Requiring a referral to a law firm be made to a specific attorney at that firm who would be responsible for seeing that the referral complies with Bar rules,

Requiring attorneys who join referral services to register with the Bar,

Requiring that the initial contact to the lawyer be made by the client and not the referral service, medical clinic, or other third party,

Improving public education about referral services and related issues.

The special committee is scheduled to meet in June 2012 during the Bar’s Annual Convention in Orlando to potentially approve the final report, which may be provided to the Bar’s Board of Governors for review in July 2012.

Bottom line:  This is the latest in the Bar’s ongoing investigation of potential additional restrictions of lawyer’s participation in for-profit lawyer referral services which is in response to criticism in the media and elsewhere; which may ultimately result in the implementation of new and revised Bar rules which will further restrict lawyer’s participation in these services.  Stay tuned…

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

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Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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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