Legal Ethics

Florida Supreme Court amends referral rules to include online resources

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The Florida Supreme Court has amended the state’s lawyer referral rules to include for-profit “matching” sites and lawyer directories.

The court announced its decision in a per curiam opinion dated March 8. According to the opinion, “lawyer referral services” are redefined as “qualifying providers,” which creates a single regulatory scheme that includes for-profit lawyer referral services, pooled advertising programs, lawyer directories, internet “matching” sites and lead generation services.

“How consumers find lawyers has been rapidly changing,” says Lori Holcomb, division director of Ethics and Consumer Protection at the Florida Bar, over email. “Rather than propose rule changes that may be obsolete by the time they were approved, it was decided that the rules should broaden the scope of covered entities thereby protecting the public and putting all such entities on a level playing field.”

The new rules require certain documentation and disclosures to lawyers and consumers. The changes also ban qualifying providers from requiring or pressuring lawyer participation and end the requirement that qualifying providers or participating attorneys have a minimum amount of malpractice insurance.

Other parts of the rule went untouched. Ads for qualifying providers must still comply with lawyer advertising rules and may only connect users to attorneys authorized to practice law in Florida. The rule also keeps in place the ban on fee-sharing.

While qualifying providers still have to provide names of participating attorneys to the state bar, the new rule requires this report to be filed annually instead of quarterly.

The qualifying provider definition does not apply to referrals for pro bono cases from legal aid or similar organizations. It also does not apply to the Florida Bar or voluntary bar association lawyer referral services.

This change stems from the Special Committee on Lawyer Referral Services report from 2012, which concerned itself with the potential harms raised by non-lawyer owned, for-profit referral services.

The report made seven recommendations, some of which are reflected in the recent rule change. According to the majority, some issues remain unanswered.

“These amendments do not, however, resolve our concern with how some lawyer referral services operate in Florida,” reads the majority opinion, “especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident.” The opinion also noted how the bar had “disregarded the findings of the Special Committee” but that “having considered the bar’s proposals, the comments filed, the bar’s response, and having had the benefit of oral argument, the court adopts the amendments to the Rules Regulating the Florida Bar as proposed by the bar.”

The court asked the bar to provide further amendments within 90 days that would prohibit a lawyer from taking a referral from such a service.

Justice C. Alan Lawson, with Justice Charles T. Canady concurring, dissented from the majority’s request for further amendments, arguing that the two referral agencies in the state at issue, which provide both legal and medical referrals, have never had an incident of misconduct.

According to Holcomb, the bar has not developed language yet to meet the court’s request.

The rule goes into effect on April 30.

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