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Florida Supreme Court rejects Bar rule prohibiting lawyers from belonging to private services which refer to both lawyers and doctors

Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court Opinion which rejected any Bar rule prohibiting lawyers from belonging to private services which refer to lawyers and doctors. The case is In Re: Amendments to Rule Regulating The Florida Bar 4-7.22, Case No SC18-881.  The April 15, 2019 opinion is here: https://efactssc-public.flcourts.org/casedocuments/2018/881/2018-881_disposition_145774_d25.pdf

A majority of the Florida Supreme Court (with Justice LaBarga dissenting) rejected any Bar rule that would have prohibited lawyers from belonging to services that refer callers for legal and other services stemming from the same incident.  In 2018, the Court issued an opinion implementing the Bar’s proposed qualifying provider rules and directed the Bar to draft and submit an additional rule prohibiting lawyers from using qualifying providers offering legal and other services stemming from the same event.

The April 15, 2019 opinion stated that, when the Court recommended a revision of Florida Bar Rule 4-7.22 last March, a majority of those justices wanted to further expand the rule to prohibit attorneys from belonging to referral services (now called qualifying providers) which refer callers for both legal and nonlegal services needed from the same event.  Those legal services are typically related to accidents or injuries where the callers need both medical and legal help.

The opinion referred to Justice Lawson’s partial dissent in the 2018 opinion and dismissed the case.  In his partial dissent in that case, Justice Lawson wrote that he disagreed with the majority only on requiring the Bar to submit a new rule banning lawyers from belonging to entities that also referred callers to other professional services emanating from the same incident. He noted the Special Committee on Lawyer Referral Services initially made that proposal in 2012. The Board of Governors considered that recommendation but instead voted that making certain disclosures to the client was sufficient.

In his partial dissent from the April 15, 2019 opinion, Justice Labarga noted that, in the 2018 opinion, “(the Court) comprehensively amended rule 4-7.22 to establish a single regulatory scheme under which lawyer participation in services that connect prospective clients to lawyers, such as matching services, are subject to the same restrictions as lawyer referral services, legal directories, and other similar services regulated by The Florida Bar.”

“Nevertheless, we expressed continued concern with respect to how certain lawyer referral services operate in Florida, particularly those that refer prospective clients to other professionals and occupational disciplines for services arising out of the same incident or transaction. I concurred in the conclusion that additional measures were needed to safeguard against potential harm…in my view, the amendments the majority rejects today are critical to ensure all services that connect prospective clients to lawyers first and foremost operate in a manner that protects and furthers the public interest.”

The dismissal of the pending case ends a multiple year review of the Bar’s lawyer referral service rules, which began when the Special Committee on Lawyer Referral Services of the Florida Bar’s Board of Governors (BOG) submitted a report in 2012.  That report recommended stricter regulation of for-profit referral services and participating lawyers and among its recommendation was a prohibition of lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident.

The BOG rejected the recommendation that lawyers be prohibited from lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident stating that disclosures to the client were sufficient along with a requirement that the lawyer making such a referral must believe it is in the client’s best interest.

The Bar submitted those proposed revised rules to the Court in 2014.  The Court rejected those amendments and directed the Bar to submit a rule that required that all for-profit referral services be owned or managed by a Bar member and that lawyers could not belong to services that also referred callers for nonlegal work resulting from the same incident.

The BOG committee then redrafted the previously proposed rules and defined any company or service that links a lawyer and potential client as a “qualifying provider” when the participating lawyers are subject to Bar rules; however, the BOG rejected the proposed requirement that a Bar member own or manage a for-profit service or a prohibition on lawyers belonging to qualified providers that refer to others. Those revised proposed rule revisions were submitted to the court in 2016 and oral arguments were held in 2017.  Some justices closely questioned the Bar representative about the Bar’s failure to follow its earlier instructions.

Bottom line:  The issue of whether lawyers can participate with for profit services which refer to both lawyers and medical providers has been settled…for now.  Lawyers can continue to participate in such services and those services do not have to be owned solely by lawyers.

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

[email protected]

www.jac-law.com

Joseph Corsmeier

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