Florida Bar News

Board to discuss online service providers

When it convenes May 24 in Palm Beach, the Board of Governors is expected to begin debating a proposal that would create the nation’s first voluntary program for regulating online legal service providers.

Recently approved by the Special Committee on Technologies Affecting the Practice of Law, the proposed amendment — “Chapter 23, Registered Online Service Provider Program” — is up for first reading.

Florida Bar President-elect John Stewart, who chairs the committee, said the program is designed to promote a cooperative relationship with the industry while strengthening public protection and expanding economic opportunity for Bar members.

He stresses that the program is strictly voluntary, and that the proposal is in its beginning stages.

“The short version is we feel like these companies aren’t going away, they exist largely in an unregulated space, and they probably serve a useful purpose for certain consumers,” Stewart said. “We think that to protect the public, they should be regulated at some modest level and we think that we’re the entity to do that.”

In exchange for registering and agreeing to be regulated, program participants would be allowed to promote themselves as “Registered With The Florida Bar.”

“I think The Florida Bar carries a rather significant brand that is recognized by the public, so if they register, it might give consumers more confidence with utilizing more services, which maybe means that they will utilize them more,” Stewart said. “We’ll have to see.”

Participants would be required to pay an annual fee, make certain disclosures, and follow certain regulations that include submitting “to jurisdiction in a Florida forum for resolution of disputes with Florida consumers.” The online service provider would have to send the Bar copies of consumer complaints about the suitability of the form and the quality of the services provided and inform the Bar of the outcome.

Companies would have to provide their customers current legal forms that have been approved by the Florida Supreme Court or that have been “reviewed and approved by a member of The Florida Bar, eligible to practice law in Florida.”

The program would also cover online legal service providers who link lawyers with consumers, recently defined by the Bar as “qualifying providers.”

Qualifying providers who participate in the program would still have to meet all of the requirements of Rule 4-7.22, but they would be allowed to use the “Registered With The Florida Bar” logo and to collect a lawyer’s fees directly from the consumer and retain their permissible charges from that payment.

The regulatory approach represents a 180-degree shift from the way the Bar developed the qualifying provider rule, its last big attempt to regulate internet activity, Stewart said.

“That was lawyer-centric, and this is really more public-centric, or corporate-centric,” Stewart said. “It’s more entity regulation, that’s the space we have to get to, because right now, all we do is regulate lawyers and Florida registered paralegals.”

Stewart said if the proposal is a success, it will accomplish three primary goals:

• Consumers will benefit from greater protections and wider access to justice.

• Providers will operate with more assurance that they won’t face sanctions for the unlicensed practice of law.

• Florida Bar members will be freer to join the networks and use their tremendous reach to interact with clients who might eventually require more personalized service.

“All we’re doing is acknowledging a reality and deciding that we need to be part of that reality for the benefit of our members and for the benefit of the public,” Stewart said.

The proposal will not face a formal vote until July.

In other action, the board is expected to:

Take final action on a proposed amendment to Rule 4-7.13, which regulates misleading advertisements.

At issue is a common internet practice, often through Google AdWords, that allows a lawyer to use a competitor’s name to trigger search engine results and drive internet traffic to the advertising lawyer’s website.

Miami attorney Alex Hanna complained that the practice is inherently misleading and that he was threatened with a Bar complaint by people who mistakenly believed he represented them after a competing firm used Hanna’s name to lure them to the competitor’s website.

Hanna originally proposed adding Subdivision (c) to Rule 4-7.13, stating that “It is inherently misleading or deceptive for a lawyer to potentially use, or arrange for the use of the name of a lawyer not in the same firm, or the name of another law firm, as words or phrases that trigger the display of the lawyer’s advertising on the Internet or other media, including directly or through a group advertising program.”

But critics of the proposal contended that existing Bar rules already ban deceptive advertising and that the rule change was unnecessary. The proposal failed on a 4-5 vote in the Board Review Committee for Professional Ethics last June, and the board failed to take up the proposal.

The BRCPE approved a new version in December 2018, that would prohibit, “any statement or implication that a lawyer or law firm is affiliated or associated with the advertising lawyer or law firm when that is not the case.”

Staff has recommended that the board approve for filing with the court.

In another issue arising from the digital domain, the Board has been asked by Ice Legal to review a decision by the Standing Committee on Advertising that the firm’s use of “multistate” is misleading under Rule 4-7.13 (a) “unless the filer’s law firm has bona fide brick-and-mortar offices in Florida and the other advertised states and the lawyers who own or are traditional employees of the firm are physically located and providing services in Florida and the other states.”

In letters to its clients, Ice Legal states that its “attorneys and staff work in an office-free environment to keep its services affordable.”

In a response to the Bar, Ice Legal founder Thomas Ice identifies himself as a “big firm refugee” and Florida lawyer for nearly 30 years who founded the firm 11 years ago to serve “low-bono and low-income” clients.

“After operating for many years with multiple locations in Florida, Ice Legal closed its offices and went completely virtual with the goal of reducing overhead and passing those savings on to clients,” Ice argues in a formal response to the Bar.

The advertising is not misleading because Ice Legal attorneys are licensed to practice in the District of Columbia and all the other states mentioned in the advertising, Thomas Ice argues, and “having an office cannot be the criteria for defining the reach of a law firm.”

In other action, the Board of Governors has been asked by a member of the Special Committee on Child and Parent Representation to direct the Professional Ethics Committee to issue an advisory ethics opinion on whether various “aspects of the Guardian ad Litem Program model violate the Rules of Professional Conduct.”

Tim Stevens, a member of the Legal Aid Society of Palm Beach, argues that the GAL program indicates that its attorneys represent, “both the child and the GAL program.”

“Although the GAL program claims it represents the child, attorneys really represent the GAL program,” Stevens argues. “If they do not legally represent the child, what actions must the GAL attorney take to comply with the rules dealing with interactions with unrepresented parties or supervise their volunteers or staff to comply with this or any other rules of professional conduct?”

Warning that there could be “unintended consequences,” and noting that the request does not cite “a particular set of facts,” the staff recommends that the Board take no action.