BIG CHANGES IN STORE FOR LAWYER/DOCTOR REFERRAL SERVICES

REPORT OF THE FLORIDA BAR SPECIAL COMMITTEE ON LAWYER REFERRAL SERVICES

Final Report - July 2012 (background section omitted)

V. CONCLUSIONS

The history of lawyer referral services, both nationally and in Florida, teaches that the primary justification for fostering lawyer referral service programs and authorizing lawyers to engage in these activities is to serve the public interest. While informing the public about legal rights and the availability of lawyers are also admirable, it is clear that service to the public is of paramount importance to the basic lawyer referral concept and that any component of lawyer referral service activity that undermines the public interest should be closely scrutinized. Lawyer referral services, or as originally known, lawyer reference services, were primarily authorized by The Florida Bar and voluntary bar associations to provide citizens access to attorneys who could assist, generally, with consumer problems in specific practice areas. Early on, even with the advent of private, for-profit referral services, the emphasis was still focused on referring consumers with particularized legal needs to attorneys who might address them.

Moreover, the decision in Bates v. State Bar of Arizona, authorizing lawyer advertising, as monumental and expansive as it was, did not lead to an immediate change in the nature of lawyer referral services.

However, advertising, coupled with the expansion of for-profit, non-lawyer-owned referral services and the attractiveness of PIP benefits, evolved into the present day phenomena of hyperspecialized referral services, many of which have married up other professions and disciplines with attorneys for an endless array of potential consumer offerings. But when one of those marriage partners owns or controls one entire side of the referral equation, issues are bound to arise. The special committee has unanimously concluded that its investigation of lawyer referral services points to three critical areas of lawyer behavior that may constitute violations of the Rules of Professional Conduct.

First, an attorney who communicates with a prospective client without a specific request from that individual has made an improper solicitation, violative of Rule 4-7.4(a). Referral of a prospective client to an attorney by another person, as avoidance of Rule 4- 7.4(a), is of little avail because Rule 4-8.4(a) prohibits attorneys from violating the Rules of Professional Conduct through another. From the special committee's investigation, there appears to be an accepted practice within certain for-profit LRS networks for accident victims to be met at referral service clinics by attorneys or paralegals, or to be called by attorneys or paralegals, with whom the accident victims have no prior relationship. As discussed above, at least some accident victims were only seeking medical treatment and had no intention of consulting an attorney.

Secondly, an attorney who accepts referrals from a referral source with the expectation of receiving additional referrals from that source – or who also refers clients to that same referral source – and who participates in non-legal decisions affecting the clients' rights, or who assists the referral source with legal matters contrary to the clients' rights, is or may be violating Rule 4-1.7(a)2 which prohibits a lawyer from representing a client where the lawyer's personal interest or the interest of a third party are likely to adversely impact representation or the lawyer's professional judgment. In addition to cross referrals of accident victims to clinics and lawyers, there is evidence of attorneys participating in decisions regarding medical treatment, and urging clients to continue treatment with referral clinics contrary to stated desires of the client. Although not specifically addressed by the special committee, it is noted that there was no evidence that a determination of the professional competency of either lawyers or doctors was customarily made by either a referral source or attorneys in their joint enterprise. An employee of an attorney, or the representative of a non-lawyer-owned referral source, who counsels a client or prospective client on his or her legal rights, is or may be engaged in the unlicensed practice of law. A lawyer who allows or assists in the unlicensed practice of law violates Rule 4-5.5(a) – and potentially Rule 4.5.4(c). As determined by the special committee in its investigatory work, paralegals or other non-lawyer personnel meet with accident victims at referral clinics to discuss their legal rights as potential clients.

VI. RECOMMENDATIONS

The findings and conclusions of the special committee, as outlined above, compel the need for the implementation of changes to the Florida Supreme Court's Rules Regulating The Florida Bar as they relate to lawyer referral services. While recognizing that The Florida Bar presently does not directly regulate non-lawyer owned services, the committee determined that greater regulation of attorneys who participate in for-profit referral services is mandated as in the best interest of the public.

During the course of the special committee's deliberations, a variety of recommendations were considered, all of which addressed lawyer conduct while participating in for-profit referral services. After consideration of the various proposals, the committee made the following recommendations:

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 client to any other professional service in consideration of the lawyer's receipt of referrals from any lawyer referral service. In making this recommendation, the special committee recognized its scope and potential impact on for-profit referral services. The special committee also recognized the potential legal implications of such a recommendation. Nevertheless, after consultation with outside legal counsel, the committee unanimously endorsed the recommendation.

2. A lawyer receiving or accepting client referrals from a referral service shall register such referral service participation with The Florida Bar, including all referral services with which the lawyer participates. In addition, any such lawyer shall provide complete disclosures regarding the lawyer's relationship with the referral service, ownership of the service, financial arrangements between the service and the lawyer, and the lawyer's affirmation of compliance with all Bar rules regarding referral services. Such attorney registration shall require payment of a fee as may be determined by The Florida Bar.

3. A lawyer participating with a referral service for the purpose of receiving or accepting client referrals must designate a lawyer within the lawyer's firm to serve as the responsible party for the firm for all cases referred to the firm or any attorney in the firm by a referral service.

4. A lawyer is prohibited from initiating contact with a prospective client referred by a referral service; all such contact must be initiated by the prospective client.

5. A lawyer accepting referrals from a lawyer referral service shall provide complete disclosures to clients of their participation in referral services, such as either a revised or addendum to the Client's Statement of Rights, notification in law firm reception areas and inclusion of the referral service participation in lawyer advertising;

6. The Florida Bar shall implement enhanced disciplinary enforcement of its rules and regulations related to lawyers participating in referral services.

7. The Florida Bar shall implement enhanced public education of its rules and regulations related to lawyers participating in referral services.

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