The Florida Bar News - April 1, 2012

Referral service panel discusses restrictions

A prohibition on taking cases referred from a source that also makes referrals for other professional services remains under consideration by the Bar’s Special Committee on Lawyer Referral Services.

The committee met March 9 and discussed several issues, including a letter from Bar outside counsel Barry Richard on the constitutional implications of restrictions on what kind of referral services to which lawyers can belong.

The committee is concerned about potential conflicts when attorneys take referrals from services that also refer callers for medical care. Members have noted that when lawyers represent clients in personal injury cases, they typically try to negotiate lower medical bills. But in these cases, they would be negotiated with the company — or a related entity — which referred them the case.

The committee is studying how to word the restriction to avoid restraint of trade, free speech, and other constitutional issues.

“The client has a right to know if there is a relationship between the lawyer and the referral service and whether there is a tie between the medical facility the lawyer may send the client to and the referral service,” said committee and Bar Board of Governors member Scott McMillen.

“Our only ability is to say our lawyers should not have to send a client to a certain doctor because they got the client by a certain entity,” added committee and Bar Board of Governors member Carl Schwait.

Representatives from two medical/legal referral services attended the meeting and assured committee members that there is no requirement that lawyer members of their referral services send their clients to the medical clinics associated with their services.

“When there is a referral made to an attorney, there is nothing that says that attorney has to refer the patient to Physicians Group [the medical entity associated with 1-800-ASK GARY]. And it’s contractual; it’s in the contract,” said Greg Zitani, attorney for ASK GARY.

Tim Chinaris, who represents 1-800-411- PAIN, added, “It’s all about relationships,” and that doctors and lawyers refer patients and clients to each other all the time based on their experience and personal knowledge.

“That’s how all this started with 411- PAIN,” he said. “It started as a medical service, and lawyers were referred cases because the patients would say to doctors, ‘Hey, I have a legal problem,’ and they’d send them to lawyers they knew. Then the Bar said, ‘Hey, you’re a referral service.’”

He added there is no requirement that attorneys belonging to the 411-PAIN referral service send patients to 411-PAIN clinics.

“They send them to who is the best [doctor or lawyer] for the patient or the client, whichever side you’re on,” Chinaris said. “I’m not saying the referrals [to 411-PAIN clinics] don’t happen. I’m saying it’s the same way that every personal injury practice works.”

Both Chinaris and Zitani said their companies would comply with whatever new rules and regulations may result from the special committee’s recommendations.

The committee discussed other possible proposals. Those included that a disclaimer would be given to callers and potential clients, either by the referral service or by the attorney when he or she is contacted by the potential client and possible changes to the client’s bill of rights. Also discussed was enhanced oversight by the Bar of referral activities, including perhaps a nominal fee for lawyers who join referral services to pay for that oversight.

Committee members discussed how referral services charge lawyers for their services. Bar advertising counsel Kathy Bible noted that Bar rules prohibit paying a per-referral fee, since that is considered an impermissible splitting of fees with a nonlawyer. The committee also briefly discussed services which advertise all over the country, but then refer the cases only to lawyers in a certain area.

Committee members expressed concern that information given by potential clients to a referral service might be discoverable. Zitani said that ASK GARY is in litigation in a couple cases on exactly that question and is arguing that the information is protected work product.

The committee also reviewed the following four recommendations made at an earlier meeting:

• Requiring a referral to a law firm be made to a specific attorney at that firm, who would be responsible for seeing that the referral complies with Bar rules.

• Requiring attorneys who join referral services to register with the Bar. Currently, the Bar relies on referral services to turn over lists of their members, which in some cases has been problematic.

• Requiring that the initial contact to the lawyer be made by the client and not the referral service, or medical clinic, or other third party. This was in response to testimony by some people who sought treatment from a medical clinic and were told they first had to hire an attorney and that clinic personnel or other nonlawyers had guided the patients in filling out the retainer forms.

• Improving public education about referral services and related issues.

Committee Chair Grier Wells said time has been reserved at the Bar’s June Annual Convention for another committee meeting. He added, “We may try to schedule a meeting prior to the Annual Meeting in an effort to conclude our work by the Annual Meeting. Toward that end, we will be starting an outline of a committee report in the near future.”