Category Archives: Lawyer independent professional judgment- AVVO and matching services

Florida Bar Board of Governors scheduled to review proposed revisions to Bar Rules related to referral services and lawyer “expert” advertising

Hello everyone and welcome to this Ethics Alert which will discuss the scheduled review by the Florida Bar Board of Governors (BOG) of proposed amendments to the Florida Bar Rules related to private lawyer referral services/qualifying providers and lawyer advertising as expert/specialist when the lawyer is not certified at its July 27, 2018 meeting.  According to the Florida Bar:

“The Board Review Committee on Professional Ethics has on their agenda a question regarding how lawyers can be paid by lawyer referral services — or qualifying providers — including considering several arrangements that are currently banned by Bar rules. Here is an overview and a Q&A on the changes that went into effect on April 30. Overview and Q&A

“The committee may report on the requests of three lawyer referral companies on whether they are qualifying providers under revised Bar Rule 4-7.22. 411-Pain and 1-800-Ask-Gary said they primarily want to refer callers who need medical assistance to their affiliated clinics and will send those who request legal assistance to participating lawyers at no cost. LegalRFQ wants to create an online system where potential clients could post their legal problems online and participating lawyers could submit bids for handling those issues.”

“In addition, the agenda includes a discussion on an amendment to Bar Rule 4-7.14, which allows attorneys and law firms that are not certified to advertise they are experts or specialists. Experts and Specialists  This amendment is being presented to the board on first reading. Almost three years ago, a federal judge struck down the Bar’s rule prohibiting non-certified lawyers from saying they or their firms are experts or specialists. The Bar’s first attempt to redraft the rule — which said lawyers and law firms that substantially met certification standards could say they were experts or specialists — was rejected by the Florida Supreme Court. The court said the amendment ‘could lead to differing and inconsistent applications.’ The board has a December 17 deadline to refile the amendment with the court.”

Bottom line: The BOG will be considering proposed revisions to the lawyer referral/qualifying provider rules, including fee arrangements that are currently prohibited by the rules, and also an amendment to the certification rule which would address the federal court opinion which found that this rule was unconstitutional as applied and issued an injunction prohibiting its enforcement, which the Bar did not appeal.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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New Jersey Supreme Court declines to review ethics opinion finding that AVVO’s referral program violates Bar Rules

Hello everyone and welcome to this Ethics Alert which will discuss the recent New Jersey Supreme Court Order denying a petition requesting review of the New Jersey Ethics Opinion which found that AVVO’s referral program violated that state’s Bar rules.  The case is In the Matter of the Advisory Committee on Professional Ethics Joint Opinion 732, The Committee on Attorney Advertising Joint Opinion 44, and the Committee on the Unauthorized Practice of Law Joint opinion 45, September Term 2017, Case No. 079852.  The Order is here is here: https://images.law.com/contrib/content/uploads/documents/399/11771/Avvo-Cert-Order.pdf

The June 1, 2018 Order denied a petition for certification by Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals.  The petition requested that the Court review a June 21, 2017 joint ethics opinion which found that Avvo facilitates improper fee-splitting and may not be utilized by New Jersey lawyers.

The joint opinion was issued by the New Jersey Advisory Committee on Professional Ethics, the NJ Committee on Attorney Advertising and the NJ Committee on the Unauthorized Practice of Law.  The Attorney General’s Office, representing the committees, and the New Jersey State Bar Association opposed the petition.  I blogged about the joint opinion in my Ethics Alerts here: https://jcorsmeier.wordpress.com/2017/06/27/new-jersey-joint-ethics-opinion-finds-that-fees-paid-to-avvo-for-client-referrals-violate-new-jersey-bar-rules/ and the joint opinion is here: https://www.dropbox.com/s/5plgfqgi26zuym1/ACPE%20732%20Avvo%2C%20LegalZoom%2C%20Rocket%20Lawyer%206.21.17.pdf?dl=0

The joint opinion was issued in response to a bar association inquiry requesting an opinion on “whether it is ethical for lawyers to participate in certain online, non-lawyer, corporately owned services to the public” specifically naming Avvo, LegalZoom and Rocket Lawyer and their referral programs.  The opinion found that the LegalZoom and Rocket Lawyer programs would be ethical if the programs were registered with the state; however, the opinion found ethics issues with the structure of Avvo’s “pay-for-service” programs and stated that lawyers are prohibited from participating in those programs.

According to the joint opinion, Avvo offers “Avvo Advisor”, which permits customers to buy a 15-minute telephone conversation with a lawyer for a $40.00 flat rate with Avvo keeping a $10.00 “marketing fee”, and “Avvo Legal Services,” where customers would pay flat fees to Avvo for legal services that would be provided by AVVO affiliated lawyers.  Avvo would then pay the lawyer and keep a “marketing” fee.  “The participating lawyer receives the set price for the legal service provided, then pays a portion of that amount to Avvo”. “The label Avvo assigns to this payment (“marketing fee”) does not determine the purpose of the fee. … lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.”

The joint opinion also found that marketing fees that lawyers would be required to pay Avvo are not for advertising but are an impermissible “referral fee” under the definitions in New Jersey Bar Rules 7.2(c) and 7.3(d).  In addition, holding the lawyer’s fee until the service is provided violates the requirement that a lawyer maintain funds in a trust account under the rules.

The joint opinion concluded: “New Jersey lawyers may not participate in the Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a nonlawyer in violation of Rule of Professional Conduct 5.4(a), and pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).”

Bottom line:  The New Jersey Supreme Court’s denial of the petition to review the joint opinion leaves New Jersey as one state which has determined that a lawyer’s participation in the “AVVO Advisor” and “AVVO Legal Services” lawyer referral plans is a violation of that state’s lawyer ethics rules.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Filed under 2017 New Jersey joint ethics opinion re AVVO lawyer referral services violate Bar rules, Attorney Ethics, AVVO Advisor fee splitting, AVVO fee sharing and referral fee plans, Avvo legal services, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer independent professional judgment- AVVO and matching services, Lawyer matching services Avvo, Lawyer referral fees, Lawyer Referral Services, Lawyer responsibilities AVVO and Linkedin, New Jersey Supreme Court Order- no review of 2017 NJ AVVO joint ethics opinion

Florida Bar’s Board of Governors will consider ethics opinion addressing fee arrangements of qualifying providers and participating lawyers

Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar Board of Governor’s (BOG) direction to its ethics committee to prepare a draft advisory opinion addressing fee arrangements between qualifying providers and participating lawyers which comply with amended Florida Bar Rule 4-7.22, which substantially revises the requirements for qualifying providers.  The amended rule becomes effective on April 30, 2018.  The Supreme Court opinion implementing the amended rule (and others) is here: http://www.floridasupremecourt.org/decisions/2018/sc16-1470.pdf

The BOG directed its Review Committee on Professional Ethics to consider a proposed advisory opinion after receiving an inquiry by a Florida Bar member.  The BOG committee will consider the opinion at a meeting scheduled for May 18, 2018, from 1-3 p.m. at the Westin hotel in Key West and the draft opinion will be Proposed Advisory Opinion 17-2.

There is currently no draft opinion; however, the proposed advisory opinion will address different types of fee arrangements between for-profit qualifying providers and lawyer referral services who are otherwise in compliance with Rules Regulating The Florida Bar and participating lawyers. The Florida Bar rules prohibit lawyers from sharing fees with private for-profit qualifying providers.

The draft advisory opinion may address various fee arrangements, including:

  1. set fees paid to the qualifying provider on a weekly, monthly, or annual basis;
  2. set fees paid to the qualifying provider for each case referred to the participating lawyer;
  3. set fees paid to the qualifying provider for each case referred to a participating lawyer depending upon the type of matter (e.g., personal injury, family law);
  4. set fees paid to the qualifying provider for each case accepted by the participating lawyer;
  5. set fees paid to the qualifying provider for each case accepted by the participating lawyer depending on the type of matter (e.g., personal injury, family law);
  6. fees paid to the qualifying provider based upon the perceived value of the case referred to the participating lawyer;
  7. set fees paid to the qualifying provider depending upon the perceived value of a type of matter referred to participating lawyers; and
  8. fees paid to the qualifying provider which are a percentage of the recovery or percentage of the fee charged by the participating lawyer.

Pursuant to Florida Bar Procedures, Florida Bar members may comment on the proposed opinion.  Any 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 notice in the April 15, 2018 issue of The Florida Bar News.

Bottom line:  The amended rule substantially change the current rules related to lawyer referrals and the Board of Governors has now initiated the process of identifying various fee arrangements between lawyers and qualifying providers which may or may not comply with the new rules.  Any lawyers who participate in (or are considering participating in) referrals from a private entity should carefully review the new rules, since lawyers can be prosecuted if the referral service (qualifying provider) fails to comply with the amended Bar rule(s).

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 Bar files Petition with Florida Supreme Court against TIKD alleging UPL; TIKD files Answer and Summary Judgment Motion

Hello everyone and welcome to this Ethics Alert which will discuss the Petition filed by The Florida Bar on January 23, 2018 alleging that the services provided by the TIKD app constitute the Unauthorized Practice of Law (UPL), TIKD’s April 4, 2018 Answer, and TIKD’s April 9, 2018 Motion for Summary Judgment.  The case is The Florida Bar v. TIKD Services LLC and Christopher Riley, Case No. SC18-149 (Supreme Court of Florida).  The Florida Bar’s Petition is here:  https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_petition_69080_petition2dupl.pdf, TIKD and Riley’s Answer and Response to Order to Show Cause is here: https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_response_50492_answer.pdf and the Motion for Summary Judgment is here:  https://efactssc-public.flcourts.org/casedocuments/2018/149/2018-149_motion_116248_motion2dother20substantive.pdf

As I have previously blogged, the TIKD internet application permits a ticketed person to upload a photo of the ticket and pay a fixed amount.  TIKD then retains an attorney to represent that person and, if he or she is ultimately is assessed with points against his or her license, TIKD refunds the payment and also pays the cost of the ticket.  The TIKD business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by an individual.

TIKD subsequently filed a lawsuit in the U.S. Federal Court, Southern District of Florida, alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations.  That case is ongoing.

The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be (or were) in violation of various Florida Bar ethics rules, including fee splitting and interference with the lawyer’s independent professional judgment.  TIKD stated that its services fully comply with Florida Bar ethics rules and that lawyers who represent the individuals receive a flat fee and are independent practitioners “over whom TIKD does not exercise any direction or control.”

On January 23, 2018, The Florida Bar filed a Petition Against the Unlicensed Practice of Law against TIKD and its founder, Christopher Riley.  The Petition alleges, inter alia, that TIKD and Riley “advertise in a fashion which may lead a reasonable lay person to believe Respondents are qualified to offer legal services to the public”, “either personally or through advertisement offer traffic ticket defense legal services for a fixed price along with an offer to pay all fines and court costs with a money-back guarantee” and, “either personally or through advertisement offer traffic ticket defense legal services while suggesting that their services are the equivalent of or a substitute for the services of an attorney.”

The Petition requested the Court to find that the alleged conduct constitutes the Unlicensed Practice of Law and issue a permanent injunction “preventing and restraining Respondents from engaging in the acts complained of and from otherwise engaging in the practice of law in the State of Florida, until such time as Respondent Riley is duly licensed to practice law in this state.”  TIKD has now filed an Answer and Response to the Order to Show Cause as well as a Motion for Summary Judgment stating that it is not engaging in the practice of law and is merely providing a valuable service to its customers.

Bottom line:  This TIKD UPL matter is now being litigated before both the Federal Court and the Supreme Court of Florida.  The internet application business model implicates the traditional and longstanding prohibitions against UPL and lawyers splitting fees with non-lawyers.

I will keep everyone advised…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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under Attorney Ethics, Florida Bar, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer improper sharing of fees - Avvo and matching services, lawyer improper solicitation through agents, Lawyer improper solicitation through non-lawyers, Lawyer independent professional judgment- AVVO and matching services, TIKD -Florida Bar UPL petition w Florida Supreme Court, TIKD UPL

Florida Bar’s Board of Governors votes to request the Florida Supreme Court to determine whether TIKD activities are UPL

Hello everyone and welcome to this Ethics Alert which will discuss the recent media reports that the Florida Bar’s Board of Governors has voted to request that the Florida Supreme Court determine whether TIKD’s app and activities constitute the unlicensed practice of law (UPL).  As I previously blogged, TIKD filed a federal lawsuit against The Florida Bar and The Ticket Clinic in November 2017 alleging, inter alia, a conspiracy to force it to cease its business activities and that The Florida Bar’s procedures violate the antitrust laws under the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission.

The federal case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court Southern District of Florida-Miami Division) and I blogged about the TIKD federal lawsuit here: https://jcorsmeier.wordpress.com/2017/12/07/startup-app-tikd-sues-florida-bar-for-alleged-antitrust-violations-florida-bar-moves-to-disqualify-former-president-from-case/, and here: https://jcorsmeier.wordpress.com/2017/12/21/florida-bars-former-president-responds-and-opposes-bars-motion-to-disqualify-him-from-tikd-v-florida-bar-ticket-clinic-antitrust-suit/

According to media reports, at its December 2017 meeting, the Florida Bar’s Board of Governors accepted a recommendation from a Bar committee which concluded that TIKD is violating Florida law by practicing law without a license or providing false or misleading information to its customer to send the matter to the Florida Supreme Court for review and a potential injunction.

The BOG decision appears to have resulted, at least in part, from the federal lawsuit which was filed in November 2017 by TIKD, an entity with an internet application that assists individuals who receive traffic tickets by retaining a lawyer and promises its users that they will not get any points on their traffic record.  The company’s lawsuit against The Florida Bar and The Ticket Clinic alleges that The Ticket Clinic and The Florida Bar are conspiring to reduce competition, that The Ticket Clinic has made threats to TIKD lawyers, that the Bar’s procedures violate antitrust laws, and that TIKD has been deprived of revenue as a result of the conduct.

According to the federal lawsuit and media reports, The Ticket Clinic, a law firm that provides legal services and defends clients in traffic ticket matters, filed complaints with The Florida Bar claiming that TIKD is engaging in UPL, and also filed complaints against lawyers who have represented TIKD customers and has threatened to have them disbarred.

Bottom line:  As I previously blogged, the TIKD federal lawsuit is one of the first filed in Florida which directly alleges that The Florida Bar’s UPL procedures violate the Sherman Antitrust Act based upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners and, as added drama, the Bar filed a motion to disqualify its recent former president from representing TIKD in the lawsuit.  Now, The Florida Bar will ask the Florida Supreme Court to weigh in and provide a determination as to whether the TIKD app runs afoul of UPL and other Bar rules.

Again, 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 ethics, risk management, or other issues, please do not hesitate to contact me.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Proposed Virginia Bar ethics opinion finds that AVVO and similar lawyer matching services are unethical

Hello everyone and welcome to this Ethics Alert which will discuss the recent approval of a Virginia ethics opinion which finds that AVVO and similar matching services unethical.  Proposed Legal Ethics Opinion 1885 is here: http://www.vsb.org/site/regulation/leo_1885

On October 27, 2017, the Virginia State Bar voted to approve a draft ethics opinion regarding online attorney-client “matching services”, such as AVVO, which are called “attorney-client matching services” (ACMS),. The opinion finds that a lawyer’s participation in the matching services would violate the Virginia Rules of Professional Conduct.

The opinion does not name any specific services; however, the description of the is similar to the business model of Avvo Legal Services, which allows consumers to purchase legal services for a flat fee.  The opinion describes a business model that it calls an “attorney-client matching service” (ACMS), which it describes as a for-profit entity that provides an online platform for matching attorneys and clients.  An ACMS gives a client a limited scope fee agreement, and the client pays the full fee to the ACMS.

The lawyer does not negotiate the scope of services or the fee or receive any of the client’s money until the services have been performed. Under ACMS’s terms, the lawyer agrees to provide flat fee legal services.  When the matter is completed, the attorney receives the full amount of the legal fee paid by the client.  ACMS then debits the attorney’s account for a “marketing fee” which varies depending upon the amount of the legal fee received.

The opinion identifies five problems with the ACMS business model:

  1. The lawyer is not properly handling the client’s advanced fee because it is allowing a third party to hold the funds. Thus, the funds are not being held in an IOLTA account as required.
  2. Since the lawyer has no access to the client’s money until he is paid in full by the platform, he is unable to fulfill his obligation to refund any unearned fees at the conclusion of the matter.
  3. Without being in control of the definition of the scope of legal services or negotiation of the fee, the lawyer may well be undertaking representation which violates any number of ethics rules. The services may not be appropriate to the client. The fee may not be commensurate with the value of the services provided. The services may be inadequate for the client’s needs. And so on.
  4. The payment of the marketing fee to ACMS constitutes the sharing of legal fees with a non-lawyer.
  5. The payment of the marketing fee constitutes payment for recommending the lawyer’s services.

The opinion criticizes the fact that Avvo holds the fee between the time that the prospective client pays for the services until the lawyer completes the services and states that “the ACMS collects advanced legal fees from a prospective client before the prospective client has had any contact with the lawyer whom she might engage” and that this is a violation of the Bar rules which require that advance fees be held in an the lawyer’s trust account until services are completed.

Under lawyer trust account rules, unearned fees are to remain in trust. As an ACMS is not a law firm, it cannot have an IOTA trust account or hold client fees in trust. Since the fees are not paid to the lawyer, the lawyer is unable hold the funds in trust if same is required under the Bar rules. In addition, under the Bar rules, a lawyer has an to refund any unearned fees at the end of the representation.

The opinion also discusses some potential solutions to the problems with the current model.  Regarding the issue of the lawyer not having control over the fee and the scope of the representation, the opinion did not flatly state that lawyers are prohibited from participating in the ACMS model. It concluded that a lawyer could participate if the lawyer consults with the client and is satisfied that the services can be performed competently and in compliance with the ethical rules before accepting a matter.  The lawyer would also have to exercise independent professional judgment to insure that the fee is not unreasonable or excessive.

The opinion held that the arrangement results in unethical fee sharing with the matching service and “(t)he fact that the ACMS executes a separate electronic debit from the lawyer’s bank account for its ‘marketing fee’ following the firm’s electronic deposit of the full legal fee to the lawyer’s bank account does not change the ethically impermissible fee-sharing character of the transaction.”  The opinion left the possibility that fee splitting might be avoided if the lawyer’s fee was based upon the number of clients received through the platform or the number of inquiries or clicks on their profile.

Bottom line: If this opinion is approved by the Virginia Supreme Court, Virginia will join five other states, New York, New Jersey, Ohio, South Carolina, and Pennsylvania, in disapproving or criticizing the AVVO business model. The New York and New Jersey opinions, which were issued this year, determined that the “marketing fee” taken from the lawyer’s account involves improper fee splitting.

Be careful out there…and stay tuned.

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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