Florida Passes Sweeping New Rules for Lawyer Referrals

Beginning April 30, 2018, new rules will go into effect throughout Florida that could seriously change how legal consumers, attorneys, and referral services interact. These new amendments to Florida Bar rules have to do with lawyer referral services in Florida and were accepted by the Florida Supreme Court on March 8, 2018.

Going forward, the new rules changes will prohibit all Florida lawyers from accepting new clients from any referral service who also refers people to non-legal professions stemming from the same incident. Put simply, that means a lawyer can no longer accept a referral from any service or agency who provides both legal and medical referrals. This is seen by many as a potentially fatal blow to a couple of companies that have built their business on referrals of clients to both lawyers and doctors following an accident.

How the Rules Have Changed

The new amendments also change the rules in other ways. For instance, they create a broader definition of who is affected. They also drop the requirement that lawyers participating with qualifying providers carry malpractice insurance. Overall, it means any lawyer referral service who wants to operate in the state of Florida will have to comply with these new rules and all others. In its per curiam opinion, the Florida Supreme Court made it clear the rules changes are intended to address the issues surrounding “lawyer participation in ‘matching’ and other similar services not currently subject to regulation by the Bar.”

Florida Chief Justice Jorge Labarga was joined by Justices Barbara Pariente, Peggy Quince, and Ricky Polston on the opinion. However, Justice Alan Lawson was joined by Justice Charles Canady in partially dissenting. In his partial dissent, Lawson wrote that he disagreed only with the section of the new rule that bans lawyers from taking clients from services who refer two or more services. In his opinion, only a select few referral agencies will even be affected rule and he also notes that no incident of misconduct has ever been reported involving those entities. Justice Fred Lewis dissented without an opinion.

What Led to the Changes

Essentially, these changes in Florida Bar rules started after a 2012 investigation, when the Florida Supreme Court decided it was bad practice for lawyers to accept cases from for-profit legal referral and directory services and considered barring them. Their reasoning was that such services were not run by attorneys, which meant they did fall under the regulation of the Florida Bar. That, in turn, drove numerous ethical concerns, especially those involving improper solicitation, undisclosed conflicts of interest, or even the possible unlicensed practice of law.

After a 2015 petition from the Florida Bar was filed, in an effort to change lawyer referral service rules, a special committee to the Bar expressed concern about the potential conflict of interest involved in a case in which a lawyer accepted a client from a referral service and the client then asked for a referral for medical treatment. The amendment offered then was rejected as too radical, as was a rule that would have required all lawyer referral services to be owned and operated by a Florida Bar member. However, the rejection of those rules was not the end of things and led to the current rules changes.

While some worry these new rules changes might put them out of business, many others are suggesting that the regulations could actually help such services proliferate, since any such service can apply to become a “qualified provider.” The amendments define a “qualifying provider” as: “[Any] person, group of persons, association, organization, or entity that receives any benefit or consideration, monetary or otherwise, for the direct or indirect referral of prospective clients to lawyers or law firms. . . .”

What the Rules Changes Mean

The rules changes mean the Bar can now require referral services to disclose the same sorts of information that has always been required of non-profits and associations, in order to qualify as a provider. In addition, the new rule will require qualified providers to maintain malpractice insurance coverage, thus relieving lawyers from having to do so, in orders to work with a qualified provider.

As noted in the partial dissent that was filed, the only referral resources that could be left in jeopardy with the new rules are the scant few services that refer legal consumers to both a lawyer and a doctor. However, the state Supreme Court has recognized the problem and they have asked the Bar to propose a solution for these types of services within 90 days.

The overall rationale of the Court in approving the new rules is to protect clients and make sure their interests are fully protected. In their opinion adopting the new amendments, they expressed concern that some services may “refer clients to other professionals and occupational disciplines for services arising from the same incidents.” They found the findings of the various investigations into the matter and wanted to ensure that the public was not harmed by such arrangements.

The Potential Impact of the Rules Changes

Attorneys representing 411-Pain, which is one of the two referral companies who many believe will be most directly affected by the rules change because they refer both lawyers and doctors, released a statement from that company, in which officials praised the section of the opinion expanding the Florida Bar’s oversight of qualifying providers. The company noted that such rules will serve to provide for equal treatment of all attorney referral companies by creating a level playing field.

At the same time, however, the company criticized the part of the rule that will prohibit lawyers from engaging with any service that also deals with medical or other professional referrals. Their argument is that preventing a lawyer referral service from referring clients to other necessary services interferes with their right to advertise under the First Amendment and the rules could “harm lawful, well-established businesses that are vital contributors to their communities.” Not surprisingly, the statement also agreed with the dissenting opinion, especially the part that suggests the restrictions are based on only “innuendo and supposition.”

While the new rules will undoubtedly cause a few lawyer referral services some pain to comply and stay in business, the requirements with qualifying may only work with qualifying providers that follow Bar rules on advertising, solicitation, and conduct. They may not work with any provider that requires them to refer prospective clients or any other persons to nonlegal services that are also offered by that provider.

There are many other requirements affecting attorneys, including the following:

All qualifying providers will have to furnish the Bar with a list of all Bar members participating in their services, and do so every year, and they must also provide participating Bar members with documentation that the qualified provider is in full compliance with Bar rules. Qualifying providers are prohibited from implying they are a law firm or directly provide legal services to the public as a part of any advertising they participate in.

Qualifying providers also are prohibited from saying that either they or their advertising has been approved by the Florida Bar. Lawyers who either begin or end work with a qualifying provider must notify the Bar within 15 days. Also, if lawyers are notified by the Bar that a provider is not in compliance with Bar rules, they have 30 days to cease working with them.

The Florida Bar promises to post the complete and updated rules on or before the April 30 date when they become effective, but they have prepared an overview of the new rules on their website, which can be found at www.floridabar.org/qualifyingproviderrule