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December 1, 2013
Board to examine referral services, ad rules, and technology

Consideration of rule changes for lawyers belonging to private lawyer referral services, a proposed advisory opinion on lawyers using the LinkedIn professional networking site, and a proposal to create a Special Committee on Technology will be on the Board of Governors December 13 meeting agenda.

The board, which is meeting in Ft. Lauderdale, also will receive information for a proposed unlicensed practice of law opinion on non-lawyer Medicaid planners, act on a rewrite of Board of Legal Specialization and Education certification policies, and review a proposed advertising opinion on deceptive hidden text in lawyer websites.

The Board Review Committee on Professional Ethics will report on the lawyer referral service proposals. It has been studying since last year recommendations from the Special Committee on Lawyer Referral Services, which in turn spent more than a year looking at the practices of private referral services.

The BRCPE will make several recommendations. Those include the potentially farthest reaching proposal from the special committee that lawyers not be allowed to belong to referral services that also make referrals for other professional services from the same incident that led to the referral to the lawyer.

That recommendation would affect large referral services, such as Ask Gary and 411-PAIN, which now refer callers for both medical treatment and legal assistance.

Other recommendations include that lawyers must notify the Bar of referral services in which they participate, must designate a member of the law firm to be primarily responsible for complying with referral rules, may not make the initial contact with a referred client, and must disclose to clients that they pay to participate in the referral service. Additionally, they may not refer a client to another person, organization, or service in exchange for receiving a referral.

Left unchanged are Bar rules to prohibit attorneys from participating in referral services that engage in direct or any other solicitation prohibited by Bar rules or that do not follow Bar advertising rules.

The board also will get a request from the Standing Committee on Advertising to direct it to prepare an advisory advertising opinion on lawyers and law firms using LinkedIn, a business networking site.

LinkedIn has raised questions because, under Bar rules, only a lawyer who is certified can claim to be a specialist or expert and that privilege is limited to the lawyer, not his or her law firm. The rules also require that an advertising lawyer list the areas in which he or she is certified. Committee members said that could cause a problem as LinkedIn lists law firm practice areas under “Specialties,” including areas for which certification is not available.

The advertising panel is sending a letter to LinkedIn letting it know of potential problems for Florida lawyers who use the site.

(Under Bar rules, lawyers are not required to submit their website or LinkedIn pages to the Bar for review, although in this case, a law firm chose to do so. Most lawyers and law firms do not submit those for review.)

The Program Evaluation Committee is considering a proposal from President-elect Greg Coleman to set up a Bar Special Committee on Technology. The proposal comes on the heels of the Bar spending considerable time looking at the impacts of technology on lawyers and the profession, including with the Vision 2016 Commission.

The special committee would be charged with working with the Vision 2016 Technology Subcommittee and recommending “to the Board of Governors actions to assure the proper and effective use of technology to further the purpose of service to lawyers and the public. The committee will seek and identify technology tools for lawyers and examine methods to provide communication, resources and assistance to lawyers about these tools.”

If approved, the special committee would begin its work in January and present findings to the board in June 2015.

The Medicaid opinion, being presented for the board’s information, comes from the Bar’s Standing Committee on the Unlicensed Practice of Law. The Elder Law Section asked the committee to consider issuing an advisory opinion on whether nonlawyers could advise people on 1) drafting personal service contracts; 2) preparation and execution of qualified income trusts; or 3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits. The committee found that all three constitute the practice of law.

It also noted there is no regulation for nonlawyer Medicaid planners. Offering those services include a disbarred lawyer, a person who lost his securities license for fraudulent practice, and an insurance agent who lost his license after conviction of two felonies.

After the board’s review, the opinion will be filed with the Supreme Court after a notice is published in the Bar News.

The advertising advisory opinion on metatags comes from the Standing Committee on Advertising, which looked at keywords, hidden text, and other methods that can make it more likely for a search engine to recommend a lawyer’s website. The committee said deceptive use of such hidden techniques, such as listing another law firm’s name, listing practice areas where the firm does not practice, and geographical areas where the firm does not have an office, are deceptive and violate Bar rules.

The board will also make several special appointments:

* One lawyer from the Northern District of Florida for a four-year term on the U.S. 11th Circuit Judicial Conference.

* Six lawyers, one at-large and one from the jurisdiction of each of the district courts of appeal, for two-year terms on the Florida Realtor-Attorney Joint Committee.

* One lawyer for a three-year term on the Florida Rural Legal Services, Inc., Board of Directors.

[Revised: 04-16-2014]