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Board recommends voluntary registration program for online service providers

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John StewartThe Board of Governors has agreed to recommend a voluntary registration program designed to protect Floridians who are increasingly turning to the internet for their legal needs.

Following a lengthy discussion at a September 20 meeting in Destin, the board voted unanimously to recommend approval of “Chapter 23, Registered Online Service Provider Program.” The proposal now goes to the Supreme Court for consideration.

Originating with the Committee on Technologies Affecting the Practice of Law, the proposal would allow online legal service providers to market themselves as “Registered with The Florida Bar” if they agree to follow a host of regulations, including submitting to the jurisdiction of Florida for the resolution of consumer complaints.

“I think we all know that there’s a wealth of legal services and legal-related services that are being provided to the citizens of Florida that are not being provided by lawyers,” President John Stewart told the board. “I think this is a very small dip of the toe in the water of this process, but I think it’s certainly something that we need to be thinking about and certainly something that we should be talking about.”

The proposed program would address entities that are already operating in a largely unregulated space, Stewart said. More specifically, the proposal would require online providers to provide the Bar with copies of all consumer complaints and how they were resolved, and a certification that the provider understands that “registration and revocation of the registration . . . is solely at the discretion of The Florida Bar.”

Chapter 23 would also protect consumers by requiring that registered online providers use only forms that are approved by the Florida Supreme Court, or ones that have been reviewed and approved by an attorney who is a member of The Florida Bar. The registered online legal service providers would also be required to notify consumers which type of form they are providing.

“They will be able to say that they are registered with The Florida Bar, that’s the tag line that they can use, and that’s the only thing that they can use,” Stewart said. “There’s an admonishment that they can’t say that these services are a substitute for the services of an attorney.”

The board was scheduled to take final action on the proposal at a July meeting in Key Largo, but the item was postponed for lack of time. The proposal was publicly noticed multiple times, and received no comments.

But some board members expressed reservations.

Board member C. Richard Nail, of the 10th Circuit, worried that the rule, by referring to legal “forms,” would allow online providers to offer pre-nuptial agreements and marital settlement agreements.

“The content is so important,” Nail said. “How do we define form? Is it just anything, or what?”

Stewart reiterated that the proposed registration program would protect consumers by requiring participants to use Supreme Court approved legal forms or forms that have been reviewed and approved by a Florida lawyer.

“We’ve added another layer of protection for the citizens,” Stewart said. “That if they’re not getting one that’s approved by the Florida Supreme Court, then this entity that is voluntarily agreeing to be regulated, is saying that they had a Florida lawyer who is licensed and in good standing approve this form for its use.”

Lori Holcomb, the Bar’s director of Ethics and Consumer Protection, also explained that nonlawyer preparation of legal forms is the practice of law, but that the Supreme Court of Florida authorized nonlawyers to provide legal forms under prescribed circumstances.

Board member Jay Kim, who represents the 17th Circuit, suggested narrowing the definition of an online service provider.

“My point is that every business pretty much has an online presence, anyone can give you a URL, but is it an internet-based business?” Kim said.

“Most of these businesses don’t do just one thing,” Stewart said. “It’s a fair question, but it’s a bit challenging to define all of the nuances.”

Board member Julia Frey, who represents the Ninth Circuit, was concerned that the only sanction for bad actors is denial of their registered status.

“So, I’m concerned that the consumer is not going to really understand that,” Frey said, “and they’re going to think The Florida Bar thinks these guys are good.”

Stewart responded that the proposed rule prohibits registered online service providers from saying that.

Other board members wondered what would happen if no providers volunteer, or if the Bar was suddenly flooded with applicants.

President-elect Dori Foster-Morales said it’s too early to gauge the response.

“The best-case scenario is that we have a better system for protecting the public,” she said. “The worst-case scenario . . . is that they kind of thumb their nose at it. Let’s roll it out and see what happens.”

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