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February 15, 2016
Board to receive wide-ranging referral service report in March

By Gary Blankenship
Senior Editor

A wide-ranging report dealing with changes to the Bar’s Lawyer Referral Service, rules that cover lawyers who belong to private, for-profit referral services, and nonlawyer companies that offer “matching services” for lawyers and potential clients is expected to go to the Bar Board of Governors at its March 11 meeting.

Carl Schwait Board member Carl Schwait, chair of the Board Review Committee on Professional Ethics, said his panel has been meeting bi-weekly with the board’s Technology Committee to work on referral rules, and will meet weekly leading up to the March meeting. He also said members of the Program Evaluation Committee, which has been reviewing the Bar’s referral service, have also participated.

The Bar had been pondering how to treat nonlawyer legal service providers, such as Avvo and LegalZoom, which offer to match lawyers with people seeking legal advice. As part of that, it was also considering ways to modernize the Bar’s referral service.

The Bar had also submitted revisions to its lawyer referral service rules to the Supreme Court to deal with lawyers who belong to referral services that also refer callers for other services stemming from the same incidents, such as accident victims who need both lawyers and medical treatment.

The issue got heightened attention last September when the Supreme Court rejected the Bar’s proposed lawyer referral service rule amendments and instead ordered the Bar to submit new rules by May 24. Those rules, the court said, should prohibit lawyers from belonging to private, for-profit services unless those services are owned or operated by Bar members and justices were critical of services that do more than legal referrals

Schwait noted in order to meet that deadline, the board must get the recommendations at its March meeting so appropriate notice can be given to Bar members before the changes are filed with the court. He also said the Bar may seek an extension from the court to give more time to get member input.

“BRC . . . is ready to give to you the most progressive, the most far-reaching and the most broad changes in the rules for those entities that provide the connection between lawyers and consumers,” Schwait said. “We have made a determination as a group . . . that in fact we must have a level playing field when it comes to a connection between how lawyers get clients but at the same time clients get their lawyers.

“And we believe that [with] the current lawyer referral services, they have the right to be on the same level playing field as these online platforms for connection.”

Beyond those considerations, there’s also an access to justice component, he said.

“It not only means giving the people of Florida the ability to get a good lawyer, but doesn’t it also mean how will the lawyers of Florida get their clients?” Schwait said. “BRC sees it as one big picture. . . . The Florida Bar and the voluntary bar referral services become an important component of that.”

Schwait and board member John Stewart, who chairs the Technology Committee, said the two committees are aiming at an expansive rule that will cover market and technology changes.

“The rule that we’re crafting right now is intended to be extremely broad,” Stewart said. “We looked at this as a definitional problem. The problem really is not only to provide access but to provide a safe harbor for lawyers so they know what they can and cannot participate in. I think that’s the biggest problem for the lawyers. So rather than fighting with these groups that say, ‘We’re not a lawyer referral service,’ we do something else. We do want requirements, the definition that is so broad that they cannot argue that they do not fall within the . . . rule. In return for that, we really hopefully recognize what are the most important requirements . . . to protecting the foundation of what makes the profession unique.”

Schwait said the two committees considered three alternatives to present referral rules, ranging from tweaks to the current regulations to the “most broadly stated definitions and the least restrictive rules in terms of lawyers.”

The committees favored the latter, most wide-ranging option, but still wants changes to that, he said.

Board member Andy Sasso, a member of the BRC, said the committee is working on two alternatives, one to comply with the court mandate that private referral services be owned or operated by Bar members and one without that requirement. He said some committee members are concerned requiring lawyer ownership or management of referral services may not be practical.

Schwait also told the board that the Bar has received an inquiry from a lawyer asking whether Avvo’s service offering to connect callers to lawyers for a 15-minute consultation for $39 – with Avvo keeping $10 – falls under the Bar’s lawyer referral service rules. He said that inquiry has been postponed until the new rules are finished. Avvo has argued it is a “matching service” and not a lawyer referral service.

Bar President Ramón Abadin noted he met with Supreme Court justices two days before the board meeting, and the justices want the Bar’s input so it can address a variety of issues.

“They clearly want action; they’ve given us a deadline of May. We need to be ready on this to have discussions and go to the membership if we need to in April. If we need more time and they give it to us, good. If not, we’ve got to hustle,” Abadin said. “My request to you all is really pay attention to this and start thinking about this because it’s on deck.”

[Revised: 06-28-2018]