In Re: Amendments to the Rules Regulating The Florida Bar - Subchapter 4-7 (Lawyer Referral Services)

Supreme Court of Florida
____________
No. SC16-1470
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IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA
BAR – SUBCHAPTER 4-7 (LAWYER REFERRAL SERVICES).
[March 8, 2018]
PER CURIAM.
The Florida Bar petitions this Court to amend the Rules Regulating the
Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.
The Bar proposes comprehensively amending rule 4-7.22 (Lawyer Referral
Services), and amending or deleting five other rules as a result of those
amendments. The Bar’s petition stems from In re Amendments to Rule Regulating
the Florida Bar 4-7.22—Lawyer Referral Services, 175 So. 3d 779 (Fla. 2015),
where the Court rejected amendments to rule 4-7.22 proposed by the Bar and
directed the Bar to propose amendments that “preclude Florida lawyers from
accepting referrals from any lawyer referral service that is not owned or operated
by a member of the Bar.” Id. at 781. The Court in that case found that the Bar had
disregarded the findings of the Special Committee on Lawyer Referral Services
(Special Committee) in its July 2012 Final Report as to the potential harm
nonlawyer-owned for-profit referral services pose to the public. Id.1 In the report,
the Special Committee concluded, after conducting an investigation into the
regulation and practices of lawyer referral services in Florida, that for-profit lawyer
referral services, particularly those that work in conjunction with other
professionals or occupations and are not owned or operated by a member of the
Bar, are more likely to run afoul of the Rules Regulating the Florida Bar and
engage in activities that do not serve the public interest. Id. at 780-81. The Special
Committee recommended greater regulation of lawyer participation in for-profit
referral services and issued seven specific recommendations, the first of which
provided:
1. A lawyer shall not accept client referrals from any person, entity or
service that also refers or attempts to refer clients to any other type of
professional service for the same incident, transaction or
circumstance, and shall furthermore be prohibited from referring a
1. The Special Committee was tasked with the following:
[R]eviewing the current practices of lawyer referral services,
reviewing all rules applicable to lawyer referral services, and
reviewing any other regulations that may be applicable to lawyer
referral services. Included within this charge is reviewing the issue of
whether and to what extent The Florida Bar can directly regulate
lawyer referral services. The [S]pecial [C]ommittee is charged with
making recommendations to The Florida Bar Board of Governors
regarding any changes to the Rules Regulating [t]he Florida Bar and
any other action deemed necessary to protect the public and ensure
compliance with the lawyer advertising rules.
In re Amend. to Rule Reg. the Fla. Bar 4-7.22—Lawyer Referral Services, 175 So.
3d at 779 (second, third, and fourth alterations in original).
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client to any other professional service in consideration of the
lawyer’s receipt of referrals from any lawyer referral service.
Id. at 781.
The amendments proposed by the Bar in this case, despite the Court’s clear
direction, do not preclude lawyers from accepting referrals from lawyer referral
services that are not owned or operated by a member of the Bar. The proposed
amendments instead address lawyer participation in “matching” and other similar
services not currently subject to regulation by the Bar that connect prospective
clients with lawyers. The proposed amendments to rule 4-7.22 establish a single
regulatory scheme under which lawyer participation in such services is subject to
the same restrictions as lawyer referral services, lawyer directories, and other like
services in which lawyer participation is currently regulated. The Bar’s proposal
prohibits lawyer participation in any service that connects prospective clients to
lawyers for a fee, or any other type of benefit, unless the service complies with rule
4-7.22 and all other applicable rules.
In addition, the Bar proposes deleting or amending five other rules as a
result of its proposed amendments to rule 4-7.22. Because lawyer directories are
included in the proposed amendments to rule 4-7.22, the Bar proposes deleting rule
4-7.23 (Lawyer Directory). It also proposes amending rules 4-7.12 (Required
Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.16
(Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion)
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to include terminology consistent with the proposed amendments to rule 4-7.22.
The Board of Governors approved the proposed amendments on a voice vote with
one objection. Pursuant to rule 1-12.1(g), the Bar published formal notice of its
intent to file a petition recommending amendments to the Bar Rules. The Court
received eight comments and the Bar filed a response.
Having considered the Bar’s proposals, the comments filed, the Bar’s
response, and having had the benefit of oral argument, the Court adopts the
amendments to the Rules Regulating the Florida Bar as proposed by the Bar.
These amendments, though not consistent with our directive in In re Amendments
to Rule Regulating the Florida Bar 4-7.22—Lawyer Referral Services, are
necessary to ensure that all services that connect prospective clients to lawyers
conform to the Rules Regulating the Florida Bar and operate in a manner
consistent with the public interest. These amendments do not, however, resolve
our concern with how some lawyer referral services operate in Florida, especially
those that refer clients to other professionals and occupational disciplines for
services arising from the same incident. The findings of the Special Committee on
this matter are troubling and we continue to believe additional measures are needed
to ensure the public is not exposed to harm. We therefore direct the Bar to submit
a petition within ninety days proposing amendments to rule 4-7.22, and any other
rule necessary, to implement the Special Committee’s first recommendation.
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Accordingly, the Rules Regulating the Florida Bar are hereby amended as
set forth in the appendix to this opinion. New language is underscored; deleted
language is struck through. The amendments shall become effective on April 30,
2018, at 12:01 a.m.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and POLSTON, JJ., concur.
LAWSON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs.
LEWIS, J., dissents.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
LAWSON, J., concurring in part and dissenting in part.
I fully agree with the majority’s decision to adopt the proposed rules in this
case. I dissent from that portion of the opinion directing The Florida Bar to file a
petition within ninety days proposing amendments to implement the Special
Committee’s July 2012 recommendation to prohibit a Florida lawyer from
accepting client referrals “from any person, entity or service that also refers or
attempts to refer clients to any other type of professional service for the same
incident, transaction or circumstance.” Majority op. at 2. The few individuals who
still express support for this recommendation have identified only two entities to
which the prohibition would apply (“411 Pain” and “Ask Gary,” both of which
refer clients to legal and medical professionals) and have not identified a single
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incident of misconduct by those entities or by any lawyer or medical professional
who takes referrals from those entities. Although I certainly recognize the
potential mischief that could flow from doctor/lawyer cross-referral relationships,
those relationships exist and appear to be common. I have not been able to discern
any basis for concluding that Ask Gary’s or 411 Pain’s model of connecting an
injured citizen to a lawyer—which this nearly six-year-old recommendation would
prohibit—poses any danger not existent in direct doctor/lawyer referral
relationships—which no one has ever suggested could or should be barred.
Additionally, I would note that under the newly adopted rules, Florida lawyers will
be prohibited from taking referrals from 411 Pain and Ask Gary if these entities
refuse to cooperate with any Florida Bar inquiry into their practices. The same is
true of all other “qualified providers” operating in Florida. Accordingly, these
rules will give The Florida Bar a way to determine whether further regulation is
needed in this area. I would wait until The Florida Bar has made that
determination, based upon hard data rather than innuendo and supposition, and
would trust the Bar’s conclusion (overwhelmingly supported) that it would be ill
advised to adopt a rule based upon the now-outdated Special Committee
recommendation.
CANADY, J., concurs.
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Original Proceeding – Florida Rules Regulating the Florida Bar
Joshua E. Doyle, Executive Director, Michael J. Higer, President, Michelle R.
Suskauer, President-elect, Michael S. Hooker, Chair, Carl B. Schwait, Past Chair,
Board Review Committee on Professional Ethics, John Mitchell Stewart, Chair,
Board Technology Committee, Lori S. Holcomb, Director, Division of Ethics and
Consumer Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida
Bar, Tallahassee, Florida,
for Petitioner
Bill Wagner, Tampa, Florida; Timothy P. Chinaris, on behalf of 1-800-411-PAIN
Referral Service, LLC, Nashville, Tennessee; Charles A. Morehead III, on behalf
of Broward County Bar Association, Sunrise, Florida; Charles D. Scott, St.
Petersburg, Florida; Josh King, on behalf of Avvo, Inc., Seattle, Washington; Brad
Salter and Robert J. Healy of Salter, Healy, LLC, St. Petersburg, Florida; and Tom
Gordon, on behalf of Responsive Law, Washington, District of Columbia,
Responding with comments
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Appendix
RULE 4-7.12 REQUIRED CONTENT
(a) Name and Office Location. All advertisements for legal employment
must include:
(1) the name of at least 1 lawyer, the law firm, the lawyer referral service if
the advertisement is for the lawyer referral service, the qualifying provider if
the advertisement is for the qualifying provider, or the lawyer directory if the
advertisement is for the lawyer directory, responsible for the content of the
advertisement; and
(2) the city, town, or county of 1 or more bona fide office locations of the
lawyer who will perform the services advertised.
(b) Referrals. If the case or matter will be referred to another lawyer or law
firm, the advertisement must include a statement to suchthis effect.
(c) - (d) [No Change]
Comment
Name of Lawyer or Lawyer Referral Service
All advertisements are required to contain the name of at least 1 lawyer who is
responsible for the content of the advertisement. For purposes of this rule,
including the name of the law firm is sufficient. A lawyer referral service,
qualifying provider or lawyer directory must include its actual legal name or a
registered fictitious name in all advertisements in order to comply with this
requirement.
Geographic Location
[No Change]
Referrals to Other Lawyers
[No Change]
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Language of Advertisement
[No Change]
RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING
ADVERTISEMENTS
A lawyer may not engage in deceptive or inherently misleading advertising.
(a) [No Change]
(b) Examples of Deceptive and Inherently Misleading Advertisements.
Deceptive or inherently misleading advertisements include, but are not limited to
advertisements that contain:
(1) statements or information that can reasonably be interpreted by a
prospective client as a prediction or guaranty of success or specific results;
(2) references to past results unless suchthe information is objectively
verifiable, subject to rule 4-7.14;
(3) comparisons of lawyers or statements, words or phrases that
characterize a lawyer's or law firm's skills, experience, reputation or record,
unless such characterization is objectively verifiable;
(4) references to areas of practice in which the lawyer or law firm does not
practice or intend to practice at the time of the advertisement;
(5) a voice or image that creates the erroneous impression that the person
speaking or shown is the advertising lawyer or a lawyer or employee of the
advertising firm. The following notice, prominently displayed would resolve
the erroneous impression: “Not an employee or member of law firm”;
(6) a dramatization of an actual or fictitious event unless the dramatization
contains the following prominently displayed notice: “DRAMATIZATION.
NOT AN ACTUAL EVENT.” When an advertisement includes an actor
purporting to be engaged in a particular profession or occupation, the
advertisement must include the following prominently displayed notice:
“ACTOR. NOT ACTUAL [ . . . . ]”;
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(7) statements, trade names, telephone numbers, Internet addresses,
images, sounds, videos or dramatizations that state or imply that the lawyer
will engage in conduct or tactics that are prohibited by the Rules of
Professional Conduct or any law or court rule;
(8) a testimonial:
(A) regarding matters on which the person making the testimonial is
unqualified to evaluate;
(B) that is not the actual experience of the person making the
testimonial;
(C) that is not representative of what clients of that lawyer or law firm
generally experience;
(D) that has been written or drafted by the lawyer;
(E) in exchange for which the person making the testimonial has been
given something of value; or
(F) that does not include the disclaimer that the prospective client may
not obtain the same or similar results;
(9) a statement or implication that The Florida Bar has approved an
advertisement or a lawyer, except a statement that the lawyer is licensed to
practice in Florida or has been certified pursuant to chapter 6, Rules Regulating
the Florida Bar; or
(10) a judicial, executive, or legislative branch title, unless accompanied by
clear modifiers and placed subsequent to the person’s name in reference to a
current, former or retired judicial, executive, or legislative branch official
currently engaged in the practice of law. For example, a former judge may not
state “Judge Doe (retired)” or “Judge Doe, former circuit judge.” She may
state “Jane Doe, Florida Bar member, former circuit judge” or “Jane Doe,
retired circuit judge….”
Comment
Material Omissions
[No Change]
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Implied Existence of Nonexistent Fact
[No Change]
Predictions of Success
[No Change]
Past Results
The prohibitions in subdivisions (b)(1) and (b)(2) of this rule preclude
advertisements about results obtained on behalf of a client, such as the amount of a
damage award or the lawyer's record in obtaining favorable verdicts, if the results
are not objectively verifiable or are misleading, either alone or in the context in
which they are used. For example, an advertised result that is atypical of persons
under similar circumstances is likely to be misleading. A result that omits
pertinent information, such as failing to disclose that a specific judgment was
uncontested or obtained by default, or failing to disclose that the judgment is far
short of the client's actual damages, is also misleading. SuchThe information may
create the unjustified expectation that similar results can be obtained for others
without reference to the specific factual and legal circumstances. An example of a
past result that can be objectively verified is that a lawyer has obtained acquittals
in all charges in 4 criminal defense cases. On the other hand, general statements
such as, "I have successfully represented clients," or "I have won numerous
appellate cases," may or may not be sufficiently objectively verifiable. For
example, a lawyer may interpret the words "successful" or "won" in a manner
different from the average prospective client. In a criminal law context, the lawyer
may interpret the word "successful" to mean a conviction to a lesser charge or a
lower sentence than recommended by the prosecutor, while the average
prospective client likely would interpret the words "successful" or "won" to mean
an acquittal.
Rule 4-1.6(a), Rules Regulating the Florida Bar, prohibits a lawyer from
voluntarily disclosing any information regarding a representation without a client's
informed consent, unless one of the exceptions to rule 4-1.6 applies. A lawyer who
wishes to advertise information about past results must have the affected client's
informed consent. The fact that some or all of the information a lawyer may wish
to advertise is in the public record does not obviate the need for the client's
informed consent.
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Comparisons
[No Change]
Characterization of Skills, Experience, Reputation or Record
The rule prohibits statements that characterize skills, experience, reputation, or
record that are not objectively verifiable. Statements of a character trait or
attribute are not statements that characterize skills, experience, or record. For
example, a statement that a lawyer is aggressive, intelligent, creative, honest, or
trustworthy is a statement of a lawyer's personal attribute, but does not characterize
the lawyer's skills, experience, reputation, or record. SuchThese statements are
permissible.
Descriptive statements characterizing skills, experience, reputation, or a record
that are true and factually verified are permissible. For example, the statement
"Our firm is the largest firm in this city that practices exclusively personal injury
law," is permissible if true, because the statement is objectively verifiable.
Similarly, the statement, "I have personally handled more appeals before the First
District Court of Appeal than any other lawyer in my circuit," is permissible if the
statement is true, because the statement is objectively verifiable.
Descriptive statements that are misleading are prohibited by this rule.
Descriptive statements such as "the best," "second to none," or "the finest" will
generally run afoul of this rule, as such statements are not objectively verifiable
and are likely to mislead prospective clients as to the quality of the legal services
offered.
Aspirational statements are generally permissible as such statements describe
goals that a lawyer or law firm will try to meet. Examples of aspirational words
include "goal," "dedicated," "mission," and "philosophy." For example, the
statement, "I am dedicated to excellence in my representation of my clients," is
permissible as a goal. Similarly, the statement, "My goal is to provide high quality
legal services," is permissible.
Areas of Practice
[No Change]
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Dramatizations
A re-creation or staging of an event must contain a prominently displayed
disclaimer, "DRAMATIZATION. NOT AN ACTUAL EVENT." For example, a
re-creation of a car accident must contain the disclaimer. A re-enactment of
lawyers visiting the re-construction of an accident scene must contain the
disclaimer.
If an actor is used in an advertisement purporting to be engaged in a particular
profession or occupation who is acting as a spokesperson for the lawyer or in any
other circumstances where the viewer could be misled, a disclaimer must be used.
However, an authority figure such as a judge or law enforcement officer, or an
actor portraying an authority figure, may not be used in an advertisement to
endorse or recommend a lawyer, or to act as a spokesperson for a lawyer under
Rulerule 4-7.15.
Implying Lawyer Will Violate Rules of Conduct or Law
Advertisements which state or imply that the advertising lawyers will engage
in conduct that violates the Rules of Professional Conduct are prohibited. The
Supreme Court of Florida found that lawyer advertisements containing an
illustration of a pit bull canine and the telephone number 1-800-pitbull were false,
misleading, and manipulative, because use of that animal implied that the
advertising lawyers would engage in "combative and vicious tactics" that would
violate the Rules of Professional Conduct. Fla. Bar v. PapeFla. Bar v. Pape, 918
So. 2d 240 (Fla.2005).
Testimonials
[No Change]
Florida Bar Approval of Ad or Lawyer
An advertisement may not state or imply that either the advertisement or the
lawyer has been approved by The Florida Bar. Such a statement or implication
implies that The Florida Bar endorses a particular lawyer. Statements prohibited
by this provision include, "This advertisement was approved by The Florida Bar."
A lawyer referral service also may not state that it is a "Florida Bar approved
lawyer referral service," unless the service is a not-for-profit lawyer referral service
approved under chapter 8 of the Rules Regulating the Florida Bar. A qualifying
provider also may not state that it is a "Florida Bar approved qualifying provider"
or that its advertising is approved by The Florida Bar.
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Judicial, Executive, and Legislative Titles
This rule prohibits use of a judicial, executive, or legislative branch title, unless
accompanied by clear modifiers and placed subsequent to the person’s name, when
used to refer to a current or former officer of the judicial, executive, or legislative
branch. Use of a title before a name is inherently misleading in that it implies that
the current or former officer has improper influence. Thus, the titles Senator Doe,
Representative Smith, Former Justice Doe, Retired Judge Smith, Governor
(Retired) Doe, Former Senator Smith, and other similar titles used as titles in
conjunction with the lawyer’s name are prohibited by this rule. This includes, but
is not limited to, use of the title in advertisements and written communications,
computer-accessed communications, letterhead, and business cards.
However, an accurate representation of one's judicial, executive, or legislative
experience is permitted if the reference is subsequent to the lawyer's name and is
clearly modified by terms such as “former” or “retired.” For example, a former
judge may state “Jane Doe, Florida Bar member, former circuit judge” or “Jane
Doe, retired circuit judge.”
As another example, a former state representative may not include
"Representative Smith (former)" or "Representative Smith, retired" in an
advertisement, letterhead, or business card. However, a former representative may
state, "John Smith, Florida Bar member, former state representative.”
Further, an accurate representation of one's judicial, executive, or legislative
experience is permitted in reference to background and experience in biographies,
curriculum vitae, and resumes if accompanied by clear modifiers and placed
subsequent to the person’s name,. For example, the statement "John Jones was
governor of the State of Florida from [ . . . years of service . . . ]" would be
permissible.
Also, the rule governs attorney advertising. It does not apply to pleadings filed
in a court. A practicing attorney who is a former or retired judge shallmay not use
the title in any form in a court pleading. If a former or retired judge uses her
previous title in a pleading, she could be sanctionedA former or retired judge who
uses that former or retired judge's previous title of "Judge" in a pleading could be
sanctioned.
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RULE 4-7.16 PRESUMPTIVELY VALID CONTENT
The following information in advertisements is presumed not to violate the
provisions of rules 4-7.11 through 4-7.15:
(a) [No Change]
(b) Lawyer Referral Services and Qualifying Providers. A lawyer referral
service or qualifying provider may advertise its name, location, telephone number,
the referral fee charged, its hours of operation, the process by which referrals or
matches are made, the areas of law in which referrals or matches are offered, the
geographic area in which the lawyers practice to whom those responding to the
advertisement will be referred or matched. AThe Florida Bar's lawyer referral
service or a lawyer referral service approved by The Florida Bar under chapter 8 of
the Rules Regulating the Florida Bar also may advertise the logo of its sponsoring
bar association and its nonprofit status.
Comment
[No Change]
RULE 4-7.17 PAYMENT FOR ADVERTISING AND PROMOTION
(a) [No Change]
(b) Payment for Referrals. A lawyer may not give anything of value to a
person for recommending the lawyer's services, except that a lawyer may pay the
reasonable cost of advertising permitted by these rules, may pay the usual charges
of a lawyer referral service, lawyer directory, qualifying provider or other legal
service organization, and may purchase a law practice in accordance with rule 4-
1.17.
(c) [No Change]
Comment
Paying for the Advertisements of Another Lawyer
[No Change]
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Paying Others for Recommendations
A lawyer is allowed to pay for advertising permitted by this rule and for the
purchase of a law practice in accordance with the provisions of rule 4-1.17, but
otherwise is not permitted to pay or provide other tangible benefits to another
person for procuring professional work. However, a legal aid agency or prepaid
legal services plan may pay to advertise legal services provided under its auspices.
Likewise, a lawyer may participate in lawyer referral programs, qualifying
providers, or lawyer directories and pay the usual fees charged by such programs,
subject, however, to the limitations imposed by rules 4-7.22 and 4-7.23. This rule
does not prohibit paying regular compensation to an assistant, such as a secretary
or advertising consultant, to prepare communications permitted by this rule.
RULE 4-7.22 LAWYER REFERRAL SERVICESREFERRALS,
DIRECTORIES AND POOLED ADVERTISING
(a) Applicability of Rule. A lawyer is prohibited from participation with any
qualifying provider that does not meet the requirements of this rule and any other
applicable Rule Regulating the Florida Bar.
(b) Qualifying Providers. A qualifying provider is any person, group of
persons, association, organization, or entity that receives any benefit or
consideration, monetary or otherwise, for the direct or indirect referral of
prospective clients to lawyers or law firms, including but not limited to:
(1) matching or other connecting of a prospective client to a lawyer drawn
from a specific group or panel of lawyers or who matches a prospective client
with lawyers or law firms;
(2) a group or pooled advertising program, offering to refer, match or
otherwise connect prospective legal clients with lawyers or law firms, in which
the advertisements for the program use a common telephone number or website
address and prospective clients are then matched or referred only to lawyers or
law firms participating in the group or pooled advertising program;
(3) publishing in any media a listing of lawyers or law firms together in
one place; or
(4) providing tips or leads for prospective clients to lawyers or law firms.
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(c) Entities that are not Qualifying Providers. The following are not
qualifying providers under this rule:
(1) a pro bono referral program, in which the participating lawyers do not
pay a fee or charge of any kind to receive referrals or to belong to the referral
panel, and are undertaking the referred matters without expectation of
remuneration; and
(2) a local or voluntary bar association solely for listing its members on its
website or in its publications.
(ad) When Lawyers May Accept ReferralsParticipate with Qualifying
Providers. A lawyer may not accept referrals from a lawyer referral service, and it
is a violation of these Rules Regulating the Florida Bar to do so, unless the
serviceparticipate with a qualifying provider as defined in this rule only if the
qualifying provider:
(1) engages in no communication with the public and in no direct contact
with prospective clients in a manner that would violate the Rules of
Professional Conduct if the communication or contact were made by the
lawyer;
(2) receives no fee or charge that constitutesis a division or sharing of fees,
unless the qualifying provider is The Florida Bar Lawyer Referral Service or a
lawyer referral service is a not-for-profit service approved by The Florida Bar
pursuant to chapter 8 of these rules;
(3) refers, matches or otherwise connects prospective clients only to
persons lawfully permitted to practice law in Florida when the services to be
rendered constitute the practice of law in Florida;
(4) carries or requires each lawyer participating in the service to carry
professional liability insurance in an amount not less than $100,000 per claim
or occurrence;
(4) does not directly or indirectly require the lawyer to refer, match or
otherwise connect prospective clients to any other person or entity for other
services or does not place any economic pressure or incentive on the lawyer to
make such referrals, matches or other connections;
(5) furnishesprovides The Florida Bar, on a quarterlyno less than an annual
basis, with the names and Florida bar membership numbers of all lawyers
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participating in the service unless the qualifying provider is The Florida Bar
Lawyer Referral Service or a lawyer referral service approved by The Florida
Bar pursuant to chapter 8 of these rules;
(6) furnishes The Florida Bar, on a quarterly basis, with the names of all
persons authorized to act on behalf of the service;
(6) provides the participating lawyer with documentation that the
qualifying provider is in compliance with this rule unless the qualifying
provider is The Florida Bar Lawyer Referral Service or a lawyer referral
service approved by The Florida Bar pursuant to chapter 8 of these rules;
(7) responds in writing, within 15 days, to any official inquiry by bar
counsel when bar counsel is seeking information described in this subdivision
or conducting an investigation into the conduct of the servicequalifying
provider or a lawyer who accepts referrals from the serviceparticipates with the
qualifying provider;
(8) neither represents nor implies to the public that the servicequalifying
provider is endorsed or approved by The Florida Bar, unless the qualifying
provider is The Florida Bar Lawyer Referral Service or a lawyer referral
service is subjectapproved by The Florida Bar pursuant to chapter 8 of these
rules;
(9) uses its actual legal name or a registered fictitious name in all
communications with the public;
(10) affirmatively states in all advertisements that it is a lawyer referral
service; and
(11) affirmatively states in all advertisements that lawyers who accept
referrals from it pay to participate in the lawyer referral service
(10) affirmatively discloses to the prospective client at the time a referral,
match or other connection is made of the location of a bona fide office by city,
town or county of the lawyer to whom the referral, match or other connection
is being made; and
(11) does not use a name or engage in any communication with the public
that could lead prospective clients to reasonably conclude that the qualifying
provider is a law firm or directly provides legal services to the public.
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(be) Responsibility of Lawyer. A lawyer who accepts referrals from a lawyer
referral service is responsible for ensuring that any advertisements or written
communications used by the service comply with the requirements of the Rules
Regulating the Florida Bar, including the provisions of this subchapterparticipates
with a qualifying provider:
(1) must report to The Florida Bar within 15 days of agreeing to participate
or ceasing participation with a qualifying provider unless the qualifying
provider is The Florida Bar Lawyer Referral Service or a lawyer referral
service approved by The Florida Bar pursuant to chapter 8 of these rules; and
(2) is responsible for the qualifying provider’s compliance with this rule if:
(A) the lawyer does not engage in due diligence in determining the
qualifying provider’s compliance with this rule before beginning
participation with the qualifying provider; or
(B) The Florida Bar notifies the lawyer that the qualifying provider is
not in compliance and the lawyer does not cease participation with the
qualifying provider and provide documentation to The Florida Bar that the
lawyer has ceased participation with the qualifying provider within 30 days
of The Florida Bar’s notice.
(c) Definition of Lawyer Referral Service. A "lawyer referral service" is:
(1) any person, group of persons, association, organization, or entity that
receives a fee or charge for referring or causing the direct or indirect referral of
a potential client to a lawyer drawn from a specific group or panel of lawyers;
or
(2) any group or pooled advertising program operated by any person, group
of persons, association, organization, or entity wherein the legal services
advertisements utilize a common telephone number or website and potential
clients are then referred only to lawyers or law firms participating in the group
or pooled advertising program.
A pro bono referral program, in which the participating lawyers do not pay a
fee or charge of any kind to receive referrals or to belong to the referral panel, and
are undertaking the referred matters without expectation of remuneration, is not a
lawyer referral service within the definition of this rule.
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Comment
Every citizen of the state should have access to the legal system. A person's
access to the legal system is enhanced by the assistance of a qualified lawyer.
Citizens often encounter difficulty in identifying and locating lawyers who are
willing and qualified to consult with them about their legal needs. It is the policy
of The Florida Bar to encourage qualifying providers to: (a) make legal services
readily available to the general public through a referral method that considers the
client's financial circumstances, spoken language, geographical convenience, and
the type and complexity of the client's legal problem; (b) provide information
about lawyers and the availability of legal services that will aid in the selection of a
lawyer; and (c) inform the public where to seek legal services.
Subdivision (b)(3) addresses the publication of a listing of lawyers or law firms
together in any media. Any media includes but is not limited to print, Internet, or
other electronic media.
A lawyer may not participate with a qualifying provider that receives any fee
that constitutes a division of legal fees with the lawyer, unless the qualifying
provider is The Florida Bar Lawyer Referral Service or a lawyer referral service
approved by The Florida Bar pursuant to chapter 8 of these rules. A fee calculated
as a percentage of the fee received by a lawyer, or based on the success or
perceived value of the case, would be an improper division of fees. Additionally, a
fee that constitutes an improper division of fees occurs when the qualifying
provider directs, regulates, or influences the lawyer's professional judgment in
rendering legal services to the client. See e.g. rules 4-5.4 and 4-1.7(a)(2).
Examples of direction, regulation or influence include when the qualifying
provider places limits on a lawyer’s representation of a client, requires or prohibits
the performance of particular legal services or tasks, or requires the use of
particular forms or the use of particular third party providers, whether participation
with a particular qualifying provider would violate this rule requires a case-by-case
determination.
Division of fees between lawyers in different firms, as opposed to any
monetary or other consideration or benefit to a qualifying provider, is governed by
rule 4-1.5(g) and 4-1.5(f)(4)(D).
If a qualifying provider has more than 1 advertising or other program that the
lawyer may participate in, the lawyer is responsible for the qualifying provider’s
compliance with this rule solely for the program or programs that the lawyer agrees
to participate in. For example, there are qualifying providers that provide a
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directory service and a matching service. If the lawyer agrees to participate in only
one of those programs, the lawyer is responsible for the qualifying provider’s
compliance with this rule solely for that program.
A lawyer who participates with a qualifying provider should engage in due
diligence regarding compliance with this rule before beginning participation. For
example, the lawyer should ask The Florida Bar whether the qualifying provider
has filed any annual reports of participating lawyers, whether the qualifying
provider has filed any advertisements for evaluation, and whether The Florida Bar
has ever made inquiry of the qualifying provider to which the qualifying provider
has failed to respond. If the qualifying provider has filed advertisements, the
lawyer should ask either The Florida Bar or the qualifying provider for copies of
the advertisement(s) and The Florida Bar’s written opinion(s). The lawyer should
ask the qualifying provider to provide documentation that the provider is in full
compliance with this rule, including copies of filings with the state in which the
qualifying provider is incorporated to establish that the provider is using either its
actual legal name or a registered fictitious name. The lawyer should also have a
written agreement with the qualifying provider that includes a clause allowing
immediate termination of the agreement if the qualifying provider does not comply
with this rule.
A lawyer participating with a qualifying provider continues to be responsible
for the lawyer’s compliance with all Rules Regulating the Florida Bar. For
example, a lawyer may not make an agreement with a qualifying provider that the
lawyer must refer clients to the qualifying provider or another person or entity
designated by the qualifying provider in order to receive referrals or leads from the
qualifying provider. See rule 4-7.17(b). A lawyer may not accept referrals or
leads from a qualifying provider if the provider interferes with the lawyer’s
professional judgment in representing clients, for example, by requiring the referral
of the lawyer’s clients to the qualifying provider, a beneficial owner of the
qualifying provider, or an entity owned by the qualifying provider or a beneficial
owner of the qualifying provider. See rule 4-1.7(a)(2). A lawyer also may not
refer clients to the qualifying provider, a beneficial owner of the qualifying
provider, or an entity owned by the qualifying provider or a beneficial owner of the
qualifying provider, unless the requirements of rules 4-1.7 and 4-1.8 are met and
the lawyer provides written disclosure of the relationship to the client and obtains
the client’s informed consent confirmed in writing. A lawyer participating with a
qualifying provider may not pass on to the client the lawyer’s costs of doing
business with the qualifying provider. See rules 4-1.7(a)(2) and 4-1.5(a).
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RULE 4-7.23 LAWYER DIRECTORY
(a) Definition of Lawyer Directory. A lawyer directory is any person, group
of persons, association, organization, or entity that receives any consideration,
monetary or otherwise, given in exchange for publishing a listing of lawyers
together in one place, such as a common Internet address, a book or pamphlet, a
section of a book or pamphlet, in which all the participating lawyers and their
advertisements are provided and the viewer is not directed to a particular lawyer or
lawyers. A local or voluntary bar association that lists its members on its website
or in its publications is not a lawyer directory under this rule. This rule does not
apply to traditional telephone directories.
(b) When Lawyers May Advertise in a Directory. A lawyer may not
advertise in a directory unless the directory:
(1) engages in no communication with the public and in no direct contact
with prospective clients in a manner that would violate the Rules of
Professional Conduct if the communication or contact were made by the
lawyer;
(2) receives no fee or charge that constitutes a division or sharing of fees;
(3) lists only persons lawfully permitted to practice law in Florida when the
services to be rendered constitute the practice of law in Florida;
(4) responds in writing, within 15 days, to any official inquiry by bar
counsel when bar counsel is seeking information described in this subdivision
or conducting an investigation into the conduct of the directory or a lawyer
who pays to be listed in the directory;
(5) neither represents nor implies to the public that the directory is
endorsed or approved by The Florida Bar;
(6) uses its actual legal name or a registered fictitious name in all
communications with the public; and
(7) affirmatively states in all advertisements that it is a legal directory or
lawyer directory.
(c) Responsibility of Lawyer. A lawyer who advertises in a lawyer directory
is responsible for ensuring that any advertisements or written communications used
by the directory comply with the requirements of the Rules Regulating the Florida
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Bar, and that the directory is in compliance with the provisions of this subchapter.
It is a violation of these Rules Regulating the Florida Bar and a failure of such
responsibility if the lawyer knows or should have known that the directory is not in
compliance with applicable rules or if the lawyer failed to seek information
necessary to determine compliance.
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