LRS Committee begins drafting recommendations
LRS Committee begins drafting recommendations
Senior Editor
Attorneys who join private lawyer referral services would have to register with the Bar under a preliminary recommendation from a Bar special committee.
While it tentatively endorsed some proposals, the Special Committee on Lawyer Referral Services, at its November 11 meeting, shied away from recommending that lawyers not be allowed to join referral services unless they are run by a local bar or The Florida Bar.
The committee, which has held two public hearings, began formulating its recommendations at the meeting. Those included that referrals from private and for-profit referral services must be made to a specific attorney at a firm, who in turn would be responsible for ensuring that the referring service follows all Bar rules.
The committee also said the Bar should do more public education about referral services and what can and cannot be done by a LRS in soliciting potential clients.
The panel discussed other issues, including whether attorneys might have a conflict when they get a referral from a service that has financial ties to clinics and doctors providing medical services to the client.
The four motions passed by the committee included:
• Any case referred by a service must be to a specific attorney at a firm, who in turn will be responsible for ensuring that the referral service is complying with Bar rules. The Bar cannot directly regulate private referral services, but it can prohibit attorneys from joining services that do not comply with Bar rules, including rules on advertising.
“It seems to me that what we really want is compliance,” said committee member Mary Ann Morgan, who is also a member of the Bar Board of Governors. “What we really want is a person who is accountable to the Bar to make sure there is compliance with the rules [for referral services].”
Committee members said that would not prohibit the attorney from bringing in other firm members, whether or not they were registered with the referral service, to work on the case.
• Require attorneys, when they join a referral service, to register with the Bar and provide disclosure of the relationship with the referral service. Currently, referral services are required to send a list of participating attorneys to the Bar, but some do not comply.
Committee Chair Grier Wells, who brought up the idea, said the Bar may charge a fee and also require the attorney to register for every referral service joined, not just one filing that would cover any services the attorney may join.
• Mandate that attorneys may not accept a referral from a referral service unless the initial contact is made by the potential client. Committee members said this would address situations, which came out at the committee’s public hearings, where people called a medical referral service seeking treatment after an accident and then were met at a clinic by a lawyer or paralegal who told them they had to sign up with a lawyer before they could be treated.
• Recommend that the Bar, perhaps as part of a larger public education project, inform the public about solicitation and referral issues, including such things as lawyers or their representatives are not allowed to directly contact potential clients.
A representative from one medical/legal referral company said his employer is already doing that. Tim Chinaris, representing 411-PAIN, said that company has been victimized by people directly soliciting people who have been involved in accidents. “411-PAIN has begun running ads saying if a lawyer calls you, it’s not from 411-PAIN. We have people impersonating 411-PAIN,” he said.
Carl Schwait, a member of the Board of Governors, said in order for the committee to be thorough, it needed to discuss whether the Bar should seek a ban of referral services that are not affiliated either with local bars or The Florida Bar. Only 12 states allow lawyers to join non-bar-affiliated services, although Chinaris said that can be misleading since many of those states allow legal “directories” and other services that are similar to referral services.
He also warned it would be difficult to ban private referral services, which have been allowed in Florida for about 25 years. Many current services started as medical referral lines but expanded to include lawyers because of popular demand, he said.
“Services like the one I represent want to have legitimate regulations because they don’t like the bad players,” Chinaris said. “And if you ban them, they [potential clients] will call the medical referral lines. They’re going to walk into doctors’ offices. . . and they’re going to ask, ‘Hey, do you know a lawyer?’ That’s how all this started.”
Wells said he was concerned that it would be hard to design a regulation to ban private services now, noting, “I promise you, a smart lawyer is going to be able to find a way around it.”
The committee ultimately took no action on the matter.
Although it took no action, the committee favorably discussed requiring disclosure to clients using referral services.
Schwait noted that Bar rules require him, when he works for an insurance company on behalf of a policy-holder, to get a signed document from the policy- holder acknowledging that, while Schwait is representing him, Schwait is paid by and reports to the insurance company.
Committee members said they had concerns when a referral service with financial ties to a medical provider also does lawyer referrals. In many cases, the referred client will be getting medical services from that financially related medical provider. In a typical case, an attorney would have a perceived duty to try to negotiate reduction in medical liens and expenses related to the case, which could cause a potential conflict when that medical provider has referred the case to the attorney, members noted.
“The lawyer is expected to negotiate that [lien],” Schwait said. “I don’t know that that is specifically addressed in our rules.”
Committee members agreed, though, that a similar conflict could exist outside a referral service when any medical provider refers a patient to an attorney.
The committee also discussed, without taking a vote, having the Bar be more proactive about enforcing rules relating to referral services, which can include regulations on solicitation, advertising, and unlicensed practice of law.
Wells said the actions taken by the committee are only preliminary and will be reviewed on legal and constitutional grounds before they are presented to the Board of Governors. The committee expects to meet again in January.
