Category Archives: Lawyer Referral Services

South Carolina ethics advisory opinion states that matching legal services such as those offered by Avvo are prohibited

Hello everyone and welcome to this Ethics Alert which will discuss the recent South Carolina ethics advisory opinion which states that marketing fees to non-lawyer companies collected as part of legal fees are prohibited.  The advisory opinion is here: http://www.scbar.org/Bar-Members/Ethics-Advisory-Opinions/Opinion-View/ArticleId/2455/Ethics-Advisory-Opinion-16-06

The July 14, 2016 ethics advisory opinion discusses a marketing program and fee arrangement similar to the one used by Avvo Legal Services.  Avvo states that the service matches lawyers willing to provide specific legal services to clients who pay a fee to Avvo, which includes a marketing fee.  Lawyers who participate then receive earned fees from Avvo once a month and Avvo takes its marketing fee from the lawyers in a separate transaction.

The South Carolina advisory opinion states that this type of fee arrangement/program constitutes improper fee sharing with non-lawyers, and, in the alternative, constitutes improper payment of a referral fee to a non-lawyer, which is also prohibited.

According to the opinion, “In the situation described above, the service collects the entire fee and transmits it to the attorney at the conclusion of the case. In a separate transaction, the service receives a fee for its efforts, which is apparently directly related to the amount of the fee earned in the case. The fact that there is a separate transaction in which the service is paid does not mean that the arrangement is not fee splitting as described in the Rules of Professional Conduct.”

“A lawyer cannot do indirectly what would be prohibited if done directly. Allowing the service to indirectly take a portion of the attorney’s fee by disguising it in two separate transactions does not negate the fact that the service is claiming a certain portion of the fee earned by the lawyer as its ‘per service marketing fee.’”

The opinion also states that marketing fees must represent the reasonable cost of the service, and these fees do not meet that criteria.  “Presumably, it does not cost the service any more to advertise online for a family law matter than for the preparation of corporate documents. There does not seem to be any rational basis for charging the attorney more for the advertising services of one type of case versus another.”

“The service, however, purports to charge the lawyer a fee based on the type of service the lawyer has performed rather than a fixed fee for the advertisement, or a fee per inquiry or “click.” In essence, the service’ s charges amount to a contingency advertising fee arrangement rather than a cost that can be assessed for reasonableness by looking at market rate or comparable services.”

Avvo representatives have previously stated that their “matching services” fee arrangement does not violate lawyer disciplinary rules.  I discussed Avvo’s program in my January 15, 2015 Ethics Alert, which is here:  https://jcorsmeier.wordpress.com/2016/01/25/lawyer-directory-website-avvo-is-offering-fixed-fee-legal-services-on-a-limited-basis-and-plans-to-expand-the-services/

An online FAQ about the legal services program on Avvo’s website states that “(l)ocal clients purchase legal services, choose the attorney they want to work with, and pay the full price of the service up front. The chosen attorney then completes the service for the client and is paid the full legal fee. As a separate transaction, the chosen attorney pays a per-service marketing fee for the completed, paid service.”

Avvo General Counsel Josh King also stated in the FAQ that Avvo is not acting as a lawyer referral service and that lawyers should not be concerned about fee splitting since “(f)ee splits are not inherently unethical.  They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment.  We believe that Avvo Legal Services fees, like credit card fees, would involve the sort of technical fee split that would not create such a potential for compromise.  Nonetheless, we have tried to keep things simple and clear by making the per-service marketing fee a separate charge.”

Bottom line:  The South Carolina ethics advisory opinion makes it clear that Avvo’s (and other similar) “matching service” arrangements constitute improper fee splitting and improper referral fees.  Lawyers who are interested in participating should carefully review their jurisdiction’s Bar rules and/or consult with and consult their Bar or consult with a lawyer familiar with their jurisdictions Bar rules before considering participation in the service.

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. 

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’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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Lawyer directory website Avvo is offering fixed fee legal services on a limited basis and plans to expand the services

 

Hello and welcome to this Ethics Alert blog which will discuss the recent decision by the lawyer directory website Avvo to offer legal services to individuals through selected lawyers for a fixed fee and charge the lawyers a marketing fee to participate.  An ABA article dated January 12, 2015 discussing Avvo’s plans is here: ABA 1-12-16 Avvo legal services article

According to the ABA article, Avvo recently began testing the new service and it plans to offer the services more broadly over the next few months.  The service is called Avvo Legal Services offers a variety of limited-scope legal services at a fixed fee. The legal services include review of legal documents such as business contracts and nondisclosure agreements as well as more complicated matters such as uncontested divorces and citizenship applications.

According to the article, Laura Moriarty, Avvo’s vice president of communications, stated that Avvo is testing the service in Atlanta, Chicago, Dallas, Houston and Phoenix and will begin offering the services in additional markets in February 2016. “Moriarty declined to identify the markets where it will initially be offered except to confirm that one will be Massachusetts.”

The ABA article states that “Avvo first got into the business of offering legal advice last year when it launched Avvo Advisor, a service that provides on-demand legal advice by phone for a fixed fee of $39 for 15 minutes. With this new service, Avvo will determine the types of services to be provided and the prices. Attorneys who sign up will be able to select which services they want to offer. When a client buys a service, Avvo sends the client’s information to the attorney. The attorney then contacts the client directly and completes the service.”

“Clients will be able to choose the attorney they want from a list of those within their geographic area who have registered to participate. Clients pay the full price for the service up front.  After the service is completed, Avvo sends the attorney the full legal fee, paid once a month for fees earned the prior month. As a separate transaction, the attorney pays Avvo a per-service marketing fee. This is done as a separate transaction to avoid fee-splitting, according to Avvo. Attorneys pay nothing to participate except for the per-case marketing fee.”

“Among the services to be offered will be document review for $199, for which the attorney will pay a $50 marketing fee; formation of a single-member LLC for $595, with a $125 marketing fee; uncontested divorce for $995, with a $200 marketing fee; and green card application for $2,995, with a $400 marketing fee.  The terms of the service require attorneys to contact a new client within one business day for a 30-minute introductory call. If the attorney determines the client is not the right fit, the attorney can decline the representation.”

An online FAQ about the legal services on Avvo’s website states that “(l)ocal clients purchase legal services, choose the attorney they want to work with, and pay the full price of the service up front. The chosen attorney then completes the service for the client and is paid the full legal fee. As a separate transaction, the chosen attorney pays a per-service marketing fee for the completed, paid service.

Avvo General Counsel Josh King also states in the FAQ that Avvo is not acting as a lawyer referral service and that lawyers should not be concerned about fee splitting since “(f)ee splits are not inherently unethical. They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment. We believe that Avvo Legal Services fees, like credit card fees, would involve the sort of technical fee split that would not create such a potential for compromise. Nonetheless, we have tried to keep things simple and clear by making the per-service marketing fee a separate charge.”  The FAQ is here:  Avvo legal services FAQ

Bottom line:  Although it is clear that AVVO (a third party non-lawyer website) is attempting to structure this legal services arrangement in a way to avoid ethics issues, whether this arrangement is ethical or unethical is subject to further analysis and interpretation by each jurisdiction regarding fee splitting and potential lawyer referral issues.  Lawyers who are interested in participating should carefully review their jurisdiction’s Bar rules and/or consult with and consult their Bar or consult with a lawyer familiar with the Bar rules before agreeing to participate.

Be careful out there!

Disclaimer:  this e-mail 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.

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

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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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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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.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers.

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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