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Florida Bar Board of Governors approves revised rule on qualifying provider fees and ethics opinion on “expert” and “specialist”

Hello everyone and welcome to this Ethics Alert which will discuss recent (October 12, 2018) vote of The Florida Bar’s Board of Governors to approve substantive revisions to Bar Rule 4-7.14 related to the use of “expert” and “specialist” and to approve proposed ethics advisory opinion 17-2, which addresses payment arrangements between lawyers and lawyer referral services (now called qualified providers).    The ethics opinion has been renumbered to 18-1 and the Bar’s notice of the approval of the opinion and requesting comments with a link to the opinion is here:  https://www.floridabar.org/ethics/etprop-advisory/

With regard to the proposed revised Bar Rule 4-7.14, the Board considered a new proposed amendment that is designed to remove the portions of the rule which were found unconstitutional by the federal court judge in 2015.  The proposed revised rule adds new subdivisions to comply to the federal court’s order and also to address the concerns of the Florida Supreme Court, which rejected the Bar’s previous proposed revised rule.

Revised Bar Rule 4-7.14 would allow non-certified attorneys to call themselves “expert” or “specialist” if they can objectively verify that claim based upon the lawyer’s education, training, experience, and “substantial involvement” in the area of practice. The amended rule would also allow law firms to call themselves “experts” or “specialists” if that claim can be objectively verified for at least one lawyer in the firm.  The law firm making the claim would be required to have a disclaimer stating that not all firm members meet the same standards, if there are lawyers who do not qualify.

With regard to Ethics Advisory Opinion 18-1,the Board considered an opinion drafted by the Board Review Committee on Professional Ethics provides that whether a particular payment method between lawyers and qualifying providers f/k/a lawyer referral services is permissible must be determined on a case-by-case basis.  The opinion sets out criteria for determining whether a payment plan is proper and ethical and the ethics opinion is discussed and summarized in the Bar News article here: https://www.floridabar.org/news/tfb-news/?durl=%2Fdivcom%2Fjn%2Fjnnews01.nsf%2F8c9f13012b96736985256aa900624829%2F06fb4fe9ad6425748525830f004fc60b

The Board considered and approved the ethics opinion at its meeting on October 12, 2018 and will consider any comments at its December 14, 2018 meeting in Naples, Florida.

Bottom line:  The Florida Bar’s Board of Governors has taken further steps to address the issues related to the use of “expert” and “specialist” (and the federal court’s ruling that its application was unconstitutional and issuing an injunction) and also the payment arrangements between lawyers and lawyer referral services/qualifying providers.

Be careful out there.

Disclaimer:  this Ethics Alert 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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