Category Archives: Florida Lawyer Referral Services

Potential Florida Bar ethics advisory opinion 17-2 will address lawyer referral fees and private client matching services

Hello everyone and welcome to this Ethics Alert which will discuss recent decision by the Florida Bar’s Board of Governors (BOG) to consider a potential ethics advisory opinion to address the ethics issues surrounding lawyer referral fees and private client matching services.  The advisory opinion has not been drafted; however, the draft opinion will be identified as Proposed Advisory Opinion 17-2.

The Bar review began after a lawyer sent an ethics inquiry to The Florida Bar asking whether lawyers could participate with a private lawyer referral service which planned to charge a different set fee depending upon the type of case referred.  The lawyer referred to the system “as a ‘pay-per-lead’ structure.”

The lawyer’s inquiry was referred to the BOG and, at its July 21, 2017 meeting in Miami, the BOG unanimously approved the recommendation of the Board Review Committee on Professional Ethics (BRCPE) that it be directed to prepare an advisory opinion on the inquiry, specifically whether lawyer referral services can charge a fee per referral and impose different fees for different types of cases.  The BRCPE has authority to decline drafting an opinion and the BOG could also decide not to issue the opinion if it is drafted.

If an ethics advisory opinion is drafted, it will address the ethics issues created when online entities (such as AVVO) rolled out programs which attempt to match potential clients with lawyers and which make different payments depending on the type of case.  The opinion would also address the Bar rules related to advertising and referral services.  Lawyers and others will be able to comment on the issues before any opinion is drafted and/or approved.

The Florida Bar Rules have long prohibited lawyers from sharing fees with private referral services.  The Bar’s Standing Committee on Advertising (SCA) also rejected “pay-per-lead” plans on previous appeals and the BOG rejected an appeal from a referral service that proposed a payment of $300.00 to participating lawyers for each referred and accepted case in 2012.

Other jurisdictions have published ethics opinions addressing these issues or are in the process of reviewing them.  As I reported in a recent Ethics Alert blog, New York Ethics Opinion 1132 (published August 8, 2017) found that New York lawyers are prohibited from participating in AVVO’s client referral services.  The opinion found that lawyers who participate in AVVO’s client referral services (and any similar services) would violate the New York Bar rules since they involve AVVO’s improper “vouching” for (recommendation of) the lawyer, improper lawyer referral fees, and improper fee sharing with a non-lawyer.

As background, The Florida Bar filed a petition with proposed Bar rule amendments with the Florida Supreme Court in 2015 addressing, inter alia, referral services that offer both legal and medical or other non-legal services. Those proposed rules would have allowed lawyers to participate in those services, as long as clients were informed about potential conflicts, there was no quid pro quo requiring the lawyer to send a referred client for medical or other services offered by the referral agency, and the lawyer’s independent judgment was not affected.

The Florida Supreme Court published an opinion on September 24, 2015 which declined to implement the rule revisions and instructed the Bar to draft rules that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.”    That opinion is here: 9/24/15 SC Opinion

The Florida Bar then filed revised rule amendments designating private entities which match lawyers with potential clients as “qualified providers” and requiring those entities to comply with the Bar rules, including a required review of the advertisements. Participating lawyers would not have been required to carry malpractice insurance.

The Florida Supreme Court heard oral argument in April 2017 and then published an order dismissing the petition on May 3, 2017. That order is here: 5/3/17 SC Order.  The order stated: “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.

The May 3, 2017 Order also stated that the dismissal was 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.”  A meeting was held at the June 2017 Bar Annual Convention in Boca Raton to discuss the issues and was attended by Justices, Bar officials, and representatives of private referral services.

The Bar’s Notice of the proposed ethics advisory opinion was published in the August 15, 2017 issue of the Florida Bar News.  The Bar’s Notice is here: 8/15/17 Notice of Proposed advisory opinion 17-2.

According to the Notice:  “The Board Review Committee on Professional Ethics will consider adopting a proposed advisory opinion at the direction of The Florida Bar Board of Governors based on an inquiry by a member of The Florida Bar, at a meeting to be held on Thursday, December 7, 2017, from 1-3 p.m. at the Ritz-Carlton on Amelia Island.” and “comments from Florida Bar members are solicited on the issues presented. Comments must contain Proposed Advisory Opinion number 17-2, must clearly state the issues for the committee to consider, may offer suggestions for additional fee arrangements to be addressed by the proposed advisory opinion, and may include a proposed conclusion. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication.”

Bottom line:  If the ethics opinion is drafted and approved, Florida will join the growing list of jurisdictions addressing “marketing fees” taken from fees paid by private online entities to lawyers participating in client generation services.  This ethics opinion (like all ethics opinions) would be advisory and for guidance only.

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 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

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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.

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