By Gary Blankenship
Recommendations on new rules governing lawyer referral services and on adopting a proposed advertising opinion on using metatags in lawyer websites have been delayed until future Board of Governors’ meetings.
Board member Carl Schwait, chair of the Board Review Committee on Professional Ethics, told the board at its Amelia Island meeting that the committee needed more time to discuss the metatags opinion.
That proposed opinion, prepared by the Standing Committee on Advertising at the board’s request, says that lawyers should not use hidden or invisible text in a deceptive way in their ads, should not use the names of other lawyers or law firms in their sites’ metatags used by search engines to find sites sought by viewers, and should not use the names of lawyers or law firms as a keyword used in Google ads.
Schwait noted the committee had received a letter from a California professor who argued the opinion was unconstitutional because it interfered with free speech and commercial activities. He said recommendations should be ready for the board’s October meeting.
The committee has spent a year reviewing recommendations of the Special Committee on Lawyer Referral Services, Schwait said, and had hoped to make its recommendation to the board at the July meeting. But he said there was a last-minute proposal to amend one of those recommendations, and the committee wanted more time for interested parties to comment.
The special committee recommended several changes to Rule 4-7.22, including that lawyers must report to the Bar when they join a private referral service and that lawyers may not join referral services that also refer callers to other professional services, such as medical care, from the same incident.
After the board meeting, Schwait said the last-minute amendment dealt with a recommendation that would prohibit a lawyer from sending a client received through a referral service for medical or other services from another entity that the referral service owns or has an interest in.
“We’re not looking to sanction lawyers; we’re just looking to ensure our rules protect the public so lawyers can represent clients ethically and professionally and so we don’t trample anyone’s constitutional rights,” Schwait said of the committee’s goals.
“Our mandate is to ensure we protect the public, but at the same time we have to understand lawyers have a right to belong to lawyer referral services. We want to have guidelines on how they can best represent their clients.”
The committee’s thrust is to prevent conflicts of interest for lawyers and see that potential clients get full disclosure about the referral services and the lawyers using them.
To address the conflict issue, Schwait said, the committee is proposing — as did the special committee — that lawyers may not accept referrals from a service that for the same matter also refers the client to other professional services that the LRS has an interest. That typically comes in medical cases, where the referral service owns or has an interest in medical facilities where callers are referred.
Schwait said the committee’s concern is medical personal injury cases frequently involve resolving liens from providers of medical services — and in these cases that provider would be at least partially owned by the referral service. So the lawyer would be engaging in negotiations on behalf of the client with the entity that provided the client, and whose interests would be adverse to the client.
A related recommendation would prevent the lawyer from getting a case from a referral service and then as a quid pro quo referring the client to medical facilities in which the referral service has an interest, he said.
“We’re putting a wall up when the lawyer referral service and the medical referral service are owned by the same entity,” Schwait said. “We always have to do what’s in the best interest of the client.”
Other recommendations are that a Bar member may not join a for-profit referral service unless that service:
* States in all ads and communications that it is a referral service, and that the service’s name clearly shows that it is a referral service. Schwait said some referral services use names that imply they are a law firm.
* Provides to the caller the name and location of the receiving lawyer at the time the referral is made.
* Complies with all Bar advertising, solicitation, and direct mail rules in reaching out to potential clients.
As for lawyers joining for-profit services, the committee is recommending:
* They be required to report to the Bar within 15 days that they have joined a particular referral service. They must also report to the Bar within 15 days when their association with a referral service is terminated.
* One or more members of a law firm that receive referrals be designated as responsible for seeing that their referral services comply with Bar rules, including advertising rules.
* Once a service makes a referral, it is up to the client to initiate contact with the lawyer.
* Lawyers must disclose to referred clients that they got their cases through the referral service and that they paid to get the referrals.
* Lawyers may not have quid pro quo agreements with medical facilities or other professionals, including those not affiliated with a referral service, to refer patients and clients for each other’s services.
“The theory is that the Florida Supreme Court has not outlawed lawyer referral services. So, therefore, as far as the Bar is concerned, lawyers are permitted to get cases from for-profit referral services, if the lawyer referral services do certain activities and the lawyer does certain activities,” Schwait said.
“It’s based on protecting the public and at the same time we have to ensure we don’t trample the rights of lawyers.
“We have to ensure there’s not a dual obligation to both the client and the lawyer referral service, and there is no conflict and that the client absolutely knows that these lawyers get these cases from the lawyer referral service, and there’s no back-and-forth referrals: ‘If you don’t use my doctors, you won’t get any cases.’”
Schwait said he now expects to present the committee recommendations to the board at its December meeting.