Board will take up elections, the CRC, and fee splitting
Board will take up elections, the CRC, and fee splitting
A report on policies for Bar elections, an update on Bar activities with the Constitution Revision Commission, and ethics opinions on splitting fees with ethics inquiries on lawyer referral services will be on the Bar Board of Governors agenda when it meets December 8 on Amelia Island.
The board will also get a preview of the 2018 legislative session, which kicks off in January, get a report on a member-initiated proposed Bar rule amendment to stiffen penalties for pursuing frivolous actions in court, and hear a presentation on implicit bias, among other business.
Elections Committee
The Bar’s Elections Committee, chaired by former Bar President Miles McGrane, has been drafting aspirational guidelines for Bar candidates, which encourage professional conduct, not overwhelming Bar members with emails and other written communications, and setting guidelines in seeking endorsements.
The guidelines also have a goal of holding down campaigning costs to encourage more members to run for Bar offices.
The board discussed the proposals at its October meeting and the committee is expected to make some refinements before seeking board approval at the December meeting. Because of First Amendment concerns, the Bar will not enforce the guidelines, but candidates will be free to point out if their opponents fail to follow the guidelines.
CRC
The board’s Special Committee on the 2017 Constitution Revision will report on recent activities. Since the last board meeting, the Bar has kicked off its public education campaign, the deadlines have passed for citizen and CRC member submission of proposed amendments, and the list of amendments to be considered by the CRC has been set at 103. Various CRC committees have begun hearing the submissions. More than two dozen either directly affect Article V of the Constitution or touch other matters of interest to the legal system. (See story on Page 1.)
Referral Services
The lawyer referral service matter comes from the board’s request for a formal ethics opinion on how lawyer referral services can be paid. Traditionally, lawyers paid a flat monthly fee for referrals from a for-profit referral service, but that model has been challenged by new services that seek to charge fees based on the types of cases referred, use a fixed fee-per-lead charge, or get a set percentage of a fixed fee charged to the clients for a particular service, such as incorporating a company or a simple divorce.
Some legal service companies, like LegalZoom, RocketLawyer, and Avvo, have varying forms of fees that potentially conflict with Bar rules prohibiting splitting fees with nonlawyers.
On a related question, the Board Review Committee on Professional Ethics, which is preparing the ethics opinion, also will report on a query from a Bar member on whether Avvo’s Advisor program, where callers pay $39 for a 15-minute consultation with an attorney and the attorney pays $10 of that to Avvo as a marketing fee, is a lawyer referral service under Bar rules. The committee has tentatively said that arrangement is a referral service under Bar rules, but will reconsider that when it meets the day before the board meeting.
Splitting Fees
Another ethics-related matter will be presented to the board: Proposed Ethics Opinion 17-1 provides a safe harbor for Bar members who may be hired as part of a legal team that includes lawyers from other jurisdictions who work in firms that have nonlawyer owners. (Currently, Washington state and the District of Columbia allow nonlawyers to have a financial interest in a law firm.)
The opinion holds that splitting fees with those lawyers does not constitute sharing fees with nonlawyers.
The Legislature
With the 2018 Regular Session rapidly approaching, the board will likely review several legislative lobbying requests from sections and may also consider Bar lobbying positions. It will also get an update from its legislative consultants on the upcoming session, which promised to be lively even before recent allegations of sexual harassment rocked the Legislature and two lawmakers resigned and another was charged by unnamed women with harassment.
A top priority for the Bar will be monitoring a constitutional amendment to impose term limits on Supreme Court justices and district court of appeal judges. Such an amendment cleared the House earlier this year, but was never taken up in a Senate committee. The measure has been reintroduced for the 2018 session. The Bar officially opposes any term limits for judges or justices.
Bullying
The board is expected to take final action on an amendment to Bar Rule 4-8.4 to clarify that lawyers may not engage in bullying or intimidating actions against other lawyers.
Bar President Michael Higer will continue his luncheon speaker series on topical issues. At this meeting, Professor Rachel Godsil of the Perception Institute will talk about implicit bias. The institute conducts research and offers solutions for bias and discrimination.
The board also will make several appointments:
• Six lawyers to the Realtor-Attorney Joint Committee.
• One attorney for the Florida Rural Legal Services, Inc., Board of Directors.
• One lawyer from the Northern District for the U.S. 11th Circuit Conference.
