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Board rejects special committee’s ‘legal lab’ recommendation

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Accepts recommendation for test program within a legal aid office for expanded paralegal service

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The concept of having a statewide legal lab to test new ways of providing legal services has been unanimously rejected by the Bar Board of Governors at its meeting on December 2.

The Supreme Court’s Special Committee to Improve the Delivery of Legal Services had conceptually approved the legal lab and recommended the court give the special committee an additional six months to flesh out how a lab would work, if the justices were amenable to the idea.

The board did approve some other recommendations from the special committee. It endorsed the idea of allowing legal aid organizations to organize under Bar rules as nonprofit corporations, and to have nonlawyer members on their boards of directors. These changes would, among other things, conform the rules to those used for federal funding for their activities. But unlike the special committee, the board said neither idea needed to be tested in the legal lab.

The board also accepted a stripped-down version of a special committee recommendation to allow Florida Registered Paralegals to provide more legal services under lawyer supervision. The special committee proposed that supervised Florida Registered Paralegals (FRPs) be allowed to provide more services in areas where litigants often appear pro se or where access may be otherwise limited. Instead, the board accepted a recommendation from board member Gordon Glover to have a pilot program at one legal aid organization to allow paralegals to provide expanded service to defendants in residential landlord/tenant and debt collection matters.

The board took the foregoing actions after rejecting other major recommendations by the special committee at an earlier meeting of the board on November 8. (See story here.)

Bar President Mike Tanner said he hopes to submit a letter describing the board’s discussion and votes on the special committee’s recommendations to the Supreme Court by December 15.

“I think the board has reviewed the special committee’s report in a very thoughtful and deliberative way,” Tanner said of the board’s votes.

Legal Labs

At the December 2 meeting, the last special committee recommendation to be considered by the board was for the creation of a Law Practice Innovation Laboratory Program, typically referred to as the “legal lab” or “lab.” The special committee recommended the lab in concept, but asked the court, if it agreed to explore the idea, to give the committee six more months to fill in the details.

As generally proposed by the special committee, the lab would be able to waive Bar rules for programs it was testing, even after the laboratory experiment ended. Those programs would be monitored and required to provide data on their performance. Participants in the lab would also agree to be subject to the Supreme Court’s jurisdiction.

Before the board’s vote on the lab recommendation at the December 2 meeting, Tanner noted  the board  had already rejected the four recommendations the special committee wanted to test in the legal lab  (i.e., nonlawyer  ownership in law firms, sharing fees with nonlawyers, expanded use of FRPs, and changes to the corporate structure and governance of legal aid organizations).

In addition, Board member Brian Burgoon listed several specific reasons he opposed the lab.

“An entity approved by the lab would continue to perform legal services without being subject to certain rules in perpetuity…. Even if the court were to sunset the lab or shut down the lab … lawyers that were in the lab would still be able to practice in perpetuity in violation of those rules,” he said.

“There’s no limitation on types of legal services that can be performed by entities in the lab. So any practice, any type of law, there is no restriction whatsoever in the recommendation. Many of those practice areas do not present an access to justice issue,” Burgoon continued.

He said he was also concerned about ownership of entities in the lab. He said original owners could sell to others, potentially allowing disbarred lawyers or convicted felons to own those entities.

“There’s no restriction on who can become an owner after they’re already approved,” Burgoon said.

Paralegals

The board voted 35-13 in favor of Glover’s proposal to reduce the special committee’s recommendation on expanded services by Florida Registered Paralegals to a pilot program in one legal aid organization, limited to defense in landlord/tenant and debt collection matters.

“The Bar likes moving in baby steps. While this proposed amendment may not move the needle as some may want to do, it is a very small baby step in that direction,” Glover said. “One of the big things that I think it does … is it sends a message to the court that, yes, access to justice is important to us but we want to focus on areas where we see there is a real need.”

Board member Jorge Piedra said there was no demonstrated benefit to making the change, noting four states already allow paralegals or nonlawyers to deliver some limited legal services.

“There’s absolutely no discussion or explanation in that report that this process allowing paralegals to practice law essentially in a limited capacity has done anything to improve the delivery of legal services,” he said.

Piedra also argued that using paralegals would be unlikely to save money and that landlord/tenant and debt collection defense cases can present complex issues beyond the skills of paralegals.

“These two areas of law do not involve the filling out of forms, they require legal thought, analysis,” he said. “There’s no form you can give to someone to assist them if they tell you they have a debt collection problem.”

Legal Aid Nonprofits

On amending Bar rules to allow legal aid organizations to incorporate as nonprofits, board members spent time crafting their recommendation to ensure it applied only to traditional legal aid operations.

Board member Michael Gelfand said the board needed to “ensure these entities … are there purely for service as opposed to any nonprofit, which could be any organization that pays its executives a large salary and is not really a not for profit.”

The board voted 36-5 to approve a motion to accept the special committee’s proposal to amend Bar rules “to permit legal aid organizations to organize as a not-for-profit corporation” while rejecting the recommendation that the change be allowed only within the legal lab.

The board then passed, by a 30-8 tally, a related motion to support amending Bar rules to allow nonlawyers to serve on the boards of directors of not-for-profit legal aid organizations. That motion also rejected the special committee’s recommendation that the change be tested within the lab.

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, nonlawyer providers of limited legal services, and related matters.

The board held special meetings on September 8 and October 26 to discuss the special committee’s recommendations with the committee’s chair, Melbourne attorney John Stewart.

The Board of Governors began debating and voting on the special committee’s recommendations November 8. At that meeting, the board voted unanimously to reject amending Bar Rule 4-5.4 on fee sharing to allow ownership of law firms by nonlawyers (a 46-0 tally) and fee splitting with nonlawyers (a 45-0 tally). The board then voted 43-0 to reject the special committee’s recommended revision of the Bar’s advertising rules, including a recommendation to end the requirement that certain lawyer advertisements be reviewed by the Bar before they are published or broadcast.

The board did vote 34-10 to support the special committee’s recommendation for better education about Bar Rule 4-1.2(c), an existing Bar rule adopted in 2003, which allows the provision of unbundled legal services.

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