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December 15, 2012
Make sure the LRS you want to join is registered with the Bar

Lawyers are being solicited to join lawyer referral services — some of which are operating online — and Florida Bar officials are cautioning Bar members to make sure any service they join is complying with Bar rules.

Mike Faehner“One of the problems we’ve been seeing is lawyers have been joining lawyer referral services without doing their due diligence and seeing if they’re even registered with the Bar,” said Mike Faehner, chair of the Bar’s Standing Committee on Advertising. “Under the rules, in order for a lawyer referral service to operate here in Florida they have to ‘quarterly report names and Bar numbers of participating lawyers [among other requirements].’” The Bar registers lawyer referral services so reporting and other requirements can be tracked.

Elizabeth Tarbert, the Bar’s ethics and advertising counsel, said there are two quick ways for lawyers to check to see if a private referral service is complying with Bar rules. One, as Faehner noted, is to see if the service has registered with the Bar and filed quarterly reports listing its lawyer participants. The second is to see if the service has submitted its ads for Bar review, as required under the rules.

However, Tarbert added, lawyers who want to join a referral service are responsible for seeing the LRS complies with all requirements or Rule 4-7.10.

“They can check for quarterly reporting with the Bar’s Lawyer Regulation Department, and they can call my department on whether any ads have been filed,” Tarbert said. “However, the lawyer referral service still needs to comply with everything else, so the lawyer can’t just assume because they have reported every quarter and filed an ad that the lawyer referral service is in total compliance, but it is a start.”

Faehner said following the rule’s dictates is more important than ever because of the exploding number of referral services and the trend of setting up online companies that handle referrals — especially since some of the companies claim they are not referral services.

“One of the big challenges we’re starting to see is some of the sites and lawyer referral services think they are not lawyer referral services and they don’t want to register with the Bar,” he said. “We’re getting a lot of information that lawyer referral services or entities that appear to be lawyer referral services are setting up websites. Many of them appear to be out of state and they are soliciting Florida lawyers to join when the services are not registered with The Florida Bar.

“Many of them don’t want to come into the jurisdiction of The Florida Bar but from a lawyer’s perspective, he or she has to do due diligence.”

The problems related to the rapidly rising number of private referral services led to the formation of the Bar’s Special Committee on Lawyer Referral Services, which made its final report to the board earlier this year. Its recommendations, which include changing Bar rules to require lawyers to report to the Bar on which referral services they belong to, are being studied by the Board Review Committee on Professional Ethics.

The Bar has no direct control over private referral services but it can and does prohibit lawyers from belonging to services that do not follow Bar rules. Likewise, that means the Bar does not take direct action against referral services that do not follow the rules, but it can take disciplinary action against lawyers who participate in those services.

Aside from registering with the Bar, filing quarterly reports and having their ads reviewed for compliance with Bar advertising rules, other requirements for private referral services under Rule 4-7.10 are:

* There must be no fee-splitting among the referral service and member lawyers, which includes a prohibition on charging a set fee for each referral.

* The referral service must use its actual name or a registered fictitious name in all communications with the public.

* Either the referral service must have malpractice insurance for its participating members or it must require that its members carry malpractice insurance.

* The referral service must state in all ads and communications with the public that it is a lawyer referral service.

* Privately-owned services must not imply in any ads or communications that they are approved or endorsed by The Florida Bar; nonprofit services run by local bar associations are exempt from that requirement.

* Services may not perform in-person solicitations, cold calling to potential clients, or other solicitation actions prohibited for lawyers.

Lawyers who wish to see if a referral service has registered with the Bar and filed quarterly reports can send an email to Monica Burkes at mburkes@flabar.org, and, if they wish to see whether the referral service has submitted ads as required, they can send an email to eto@flabar.org or call the Ethics and Advertising Department at (850) 561-5780.

[Revised: 11-21-2014]