Avoiding the lawyer referral trap
Avoiding the lawyer referral trap
What is a lawyer referral service? Under Florida rules, lawyer referral services are defined very broadly. Any person or entity paid a fee or given anything of value for causing either the direct or indirect referral of prospective clients is a lawyer referral service under Rule 4-7.11(c)(1), Rules Regulating The Florida Bar. Pro bono referral services, in which the lawyers agree to represent prospective clients at no charge and in which the lawyers do not pay fees for referrals, do not fall within the rule. However, “any group or pooled advertising program” that uses a common telephone number, and prospective clients dialing that number are referred to the lawyers participating in the program also is a lawyer referral service under Rule 4-7.11(c)(2), Rules Regulating The Florida Bar.
Under that latter definition, the Board of Governors found that the Web site of a local bar association section, which included information promoting the legal services of the section members, provided contact information of the participating section members, and was aimed at consumers, was a lawyer referral service. Under that same definition, the Board of Governors also determined that a statewide organization running an educational campaign to encourage the use of lawyers in transactional work was a lawyer referral service. That’s because the advertisements gave a toll-free number that consumers could call and, upon request, be provided with the names of selected Florida Bar members who met specific criteria of the organization and were members of the organization.
Although many jurisdictions prohibit lawyer participation in for-profit lawyer referral services, Florida does not. Florida Bar members may receive referrals from a for-profit lawyer referral service if the referral service meets certain requirements.
Under Rule 4-7.11(a), Florida Bar members must not participate in a lawyer referral service unless: the lawyer referral service advertisements comply with Florida’s lawyer advertising rules; the lawyer shares no legal fees with the lawyer referral service (unless the service is a not-for-profit service approved by The Florida Bar); the lawyer referral service only accepts Florida Bar members in good standing; the lawyer referral service either provides or requires the lawyer to have malpractice insurance of $100,000 per claim; the lawyer referral service provides The Florida Bar with the names and Bar numbers of all participating Florida Bar members quarterly; the lawyer referral service provides The Florida Bar with the names of persons authorized to act for the service quarterly; the lawyer referral service responds to all Florida Bar inquiries within 15 days; the lawyer referral service does not state or imply that The Florida Bar endorses or approves the service, and the lawyer referral service uses its own name or a registered fictitious name in all advertisements.
If a Florida Bar member is considering joining a for-profit lawyer referral service, The Florida Bar member should take steps to ensure that the lawyer referral service complies with this rule. Payments to a for-profit lawyer referral service should be a flat annual or flat monthly fee. Payments per referral or as a percentage of legal fees from cases referred do not comply with the rule. The Florida Bar member should ask to see copies of the advertisements used by the lawyer referral service as well as copies of the bar’s written opinion by the Ethics and Advertising Department on whether the ads comply with Florida’s advertising rules.
The lawyer may also call the Bar’s Ethics and Advertising Department at (850) 561-5780 to make a public records request for advertising filings of the lawyer referral service. If the service has filed no ads, the service likely is not in compliance with Bar rules, and the lawyer should not join the service. Finally, the lawyer should check to see if the service is making quarterly reports to The Florida Bar. To check on quarterly reporting, Bar members may call Tameika Gainous at (850) 561-5753 or Melissa Mara at 561-5776. If the lawyer referral service has made no quarterly reports, it is not in compliance with the rules.
Questions regarding Rule 4-7.11 or any of the Rules of Professional Conduct may be directed to the Ethics Hotline at (800) 235-8619. The Ethics Hotline is open Monday through Friday from 9 a.m. until 5 p.m. E-mail inquiries may be sent to [email protected].
