Board learns more about Supreme Court committee’s ‘legal lab’ recommendation
A legal laboratory has been suggested as a means to get hard data to test new ways of providing legal services to Floridians.
John Stewart, chair of the Special Committee to Improve the Delivery of Legal Services, made that point to the Bar Board of Governors on September 8 at the board’s first of two meetings to discuss the special committee’s controversial recommendations.
The special committee was directed by the Supreme Court in late 2019 to study how legal services to consumers could be improved with lawyers playing a “proper and prominent role in the provision of these services.” It was directed to look at lawyer advertising, referral fees, fee splitting, regulation of lawyers, regulation of online legal service providers and nonlawyer providers of limited legal services, and related matters.
The committee filed its final report on June 28, and Bar President Mike Tanner said the Supreme Court has agreed to wait for the board’s review of the report before acting on it.
The board will meet again on October 26 to discuss the remainder of the recommendations and then again in November to vote on its response to the special committee’s report.
At the September 8 meeting, the board asked questions — but did not debate or take any votes — about the first two of the special committee’s several recommendations. Those included the proposal that the Bar should better publicize Rule 4-1.2(c) that allows unbundled legal services, and the major recommendation that the court should approve the legal lab concept as a vehicle to allow further study of the report’s other recommendations.
The lab would allow lawyers, nonlawyers, and companies to offer new ways of providing legal services and possibly be exempt from some Bar rules in exchange for close monitoring, providing data about the program’s effectiveness, and continued demonstration of a lack of public harm.
Board member Brian Burgoon asked Stewart if certain legal practice areas would be excluded from the lab. He and board member Sia Baker-Barnes noted there does not appear to be an unmet need in personal injury cases.
But Stewart said it’s not certain that all the needs are met in that practice area. He said attorneys tend to take cases they think they can win and that can cover their expenses. That means people with smaller injuries may not be able to get lawyers.
“I wouldn’t foreclose any particular practice area” from the lab, he said.
At another point, Stewart, who practices with GrayRobinson in Melbourne, explained, “There is not a finite set of platforms or programs or services that would be limited by the lab structure because you can’t visualize every possibility…. It should be open. That doesn’t mean that everyone who applies to the lab would be permitted. It may be they decide it shouldn’t be permitted because the risk of consumer harm is too high, or they may decide there’s no actual need…or the need could be met in another way. Not every platform, person, service, or idea that comes to the lab should be approved.”
Much of the problem, he added, is there’s is no hard data on where unmet needs are, what rules might inhibit or enhance meeting those needs, and what programs are effective in meeting the needs. It is clear under the present system, most people, particularly low- and middle-income families and small businesses, have unmet needs.
“Let’s do some pilot programs, let’s collect some data, and let’s find out,” Stewart said. “We have to get more to a data-driven decision-making process. That’s why we focused on the lab [in the committee’s report].”
The lab would be overseen by a Supreme Court commission, Stewart said. He said the special committee has not proposed a final lab program, but rather sketched out a proposal and asked the court — if it likes the idea — to give the committee another six months to fill in the remaining details.
He said lawyers, companies, and perhaps a combination of lawyers and companies could make a pitch to provide services. Applicants to the lab would have to show there is an unmet need, they intend to meet that need, provide continuing data showing how the program is working, and that it is not harming the public.
Burgoon and board member Amy Farrior asked about the recommendation that entities authorized under the lab would be able to continue in operation, including under waivers from Bar rules, even if the lab were ended.
“The concept is that significant enterprises are not going to invest time, money, and energy for something that can be pulled away from them,” Stewart said. “If someone were to get a license, the concept is if the lab dissolved that wouldn’t automatically revoke the license.”
The entity would have to continue to follow its agreement, provide data, and demonstrate that consumers were not being harmed, he said.
“It’s analogous to a lawyer’s license; the idea is if you get it, you get it until it’s taken away because of malfeasance,” he said. “We don’t take it away because we don’t like the program.”
Burgoon noted that could give a company, which has a unique exception to Bar rules, an advantage if the lab program ended, and the owner of that company could realize a windfall if he or she sold it.
Stewart said that would be studied further if the court orders more work on the lab concept.
Young Lawyers Division President Todd Baker asked if clients who use lawyers might be disadvantaged because the lab approves programs to help people who don’t hire lawyers.
But Stewart said in some ways that is already happening, noting the state court system’s statewide e-filing Portal has recently added a variety of free do-it-yourself forms on subjects ranging from landlord/tenant to domestic violence to family law and are available to anyone regardless of financial need.
“The competition you’re referring to is happening within our own family,” he said. “It’s coming. Why is it coming? Because courts are overwhelmed with unrepresented litigants. The courts are going to say, ‘We’re going to solve that problem ourselves.’”
It’s better that the legal profession be involved in designing the changes, Stewart said.
“I don’t look at this as a zero-sum game,” he said. “I don’t think that whatever evolves from this, if anything, there is a winner and a loser…. There’s an enormous market…an enormous untapped market [for legal services]…I think this is an instance where a rising tide lifts all ships.”
On Rule 4-1.2(c), which allows for lawyers to provide unbundled services — handling just specific parts of a client’s case — Stewart said the special committee thought the rule was underused and should be publicized more to both attorneys and potential clients. He said the committee was not recommending any changes, only better promotion of the rule.
Board member Hillary Creary said she offers unbundled services in family law cases under the rule but frequently has judges unwilling to release the lawyers when their limited services have been provided.
“A lot of the judges don’t seem to like that particular rule and a lot of them don’t seem to like to release you,” Creary said, calling for better education for judges on how the rule works.
Stewart explained that the legal lab was key to some of the remaining recommendations made by the committee. Those will be discussed by the board at the October 26 meeting.
Those remaining recommendations, which Stewart said would also require more work, are:
• Allowing nonlawyer law firm employees whose work directly supports the firm to have an ownership interest in the firm. Lawyers would have to retain a majority ownership interest in the firm, the nonlawyer owners would be bound by Bar rules, and lawyer owners would be responsible for the actions of nonlawyer owners. The special committee opposed allowing non-firm employees — such as passive outside investors — to have an ownership interest.
• Within the proposed legal lab, allowing lawyers to share fees with nonlawyers, such as with online companies providing legal services. That might also require some changes in how lawyer referral fees are paid.
• Again, within the legal lab, allowing “Florida Registered Paralegals to provide limited legal services in specific areas and within a law office.” Under the conceptual proposal, that would include filling out and filing legal forms, providing limited information about the client’s legal matter, and providing ministerial assistance on court proceedings, such as scheduling court appearances. The supervising attorney would be responsible for a paralegal’s work.
• Allowing nonprofit law firms, which would basically ratify the existing operation of many legal aid agencies.
• Streamlining Bar advertising rules, while keeping the basic purpose of preventing misleading and false advertising.
Complete information about the Special Committee to Improve the Delivery of Legal Services, including the final report, various studies and reports it considered, meeting agendas, and minutes can be found on its webpage.
The Bar has also set up a special email account for members who want to comment on the special committee’s proposals. Those comments should be sent to [email protected] no later than October 29 and will be posted on special committee’s webpage.