Supreme Court of Florida
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No. SC14-2126
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IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR
4-7.22—LAWYER REFERRAL SERVICES.
[September 24, 2015]
PER CURIAM.
The Florida Bar petitions this Court to amend Rule Regulating the Florida
Bar 4-7.22 (Lawyer Referral Services). We have jurisdiction. See art. V, § 15,
Fla. Const.
Over the years, for-profit lawyer referral services in Florida have been
considered questionable because they generate money for the owner of the service
through referrals of clients to attorneys. Since the adoption of the Rules
Regulating the Florida Bar,1 this Court has restricted the circumstances under
which Florida attorneys may accept referrals from for-profit lawyer referral
services. See Fla. Bar re Rules Reg. the Fla. Bar, 494 So. 2d 977, 1075-77 (Fla.
1. The rule governing lawyer referral services has been renumbered and
amended multiple times since its initial adoption in 1986.
1986) (adopting rule 4-7.6 (Lawyer referral services)). Despite this continuous
regulation, The Florida Bar’s Special Committee on Lawyer Referral Services
(Special Committee) was created in 2011 after the Bar received numerous
complaints with regard to advertising by lawyer referral services in Florida in
recent fiscal years. The Florida Bar has noted the recent and dramatic growth of
for-profit lawyer referral services, along with a corresponding increase in public
concern as to both the misleading nature of the activities of these services and the
potential harm they may cause. The Special Committee was tasked with
reviewing 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.
The Special Committee conducted a comprehensive investigation, which
resulted in the July 2012 Report of the Special Committee on Lawyer Referral
Services (final report). The final report raised numerous concerns regarding for-
profit lawyer referral services that are owned by persons or entities other than
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lawyers or law firms and that specialize in other occupational fields.2 For example,
disconcerting trends were specifically observed with regard to lawyer referral
services that are owned by individuals or entities that specialize in the personal
injury sector:
[S]ome referral services have used advertising to disguise direct
solicitations; some patients, in filling out purported medical care
paperwork, have unknowingly signed undisclosed and unexplained
law firm retainers; and some patients, unhappy with their medical
treatment at a referral clinic, have gone to their referral-designated
lawyer for help, only to be told—even in situations where the lawyer
was already seeking [personal injury protection] benefits for them
from an insurance company—that the lawyer could not help them
because the lawyer represents the clinic.
Further, the Special Committee noted that according to an article published by a
Miami periodical, when unsophisticated accident victims telephoned a lawyer
referral service, they received
a variety of treatment modalities they did not understand and for
which no explanation was given. They were ultimately referred to an
attorney who provided little advice other than to explain a
contingency fee agreement, after which the victims/clients dealt only
with the attorney’s secretary. Thousands of dollars in medical bills
were incurred and partially paid through the personal injury protection
insurance of the victim/clients. All proceeds therefrom went for
medical expenses but the victim/client was still left with significant
bills. The article further highlighted that [the referral service] made
no secret about courting African American and Latino consumers
2. The final report noted that most for-profit referral services that are
registered with The Florida Bar are owned by persons or entities other than
lawyers.
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through R&B and hip hop radio stations, catchy jingles and outlandish
spokespersons.
Additionally, some law firms that are affiliated with for-profit lawyer
referral services steer clients towards other businesses operated by the owner of the
referral service, sometimes to the detriment of the health and well-being of the
client. A resident of Kentucky was invited to attend a public hearing of the Special
Committee because of her experience with a law firm that was significantly
involved with a lawyer referral service. The law firm is headquartered in Florida
and maintains offices in both Florida and Kentucky. The referral service is owned
by a chiropractor who operates or controls a chain of clinics in Florida and at least
two other states. The final report provided:
Following a serious automobile accident, [the client] engaged the law
firm because of its advertising in Kentucky, but did not contact a
referral service. . . . [T]he law firm advised her to use her personal
injury protection insurance for treatment, never advising her that her
health insurance was also potentially available to cover medical costs.
At the law firm’s advice, [she] was seen by doctors affiliated with a
clinic owned by [the referral service] and eventually flown to Florida
for surgery at another clinic affiliated with [the referral service].
[She] was advised that the treatment she needed was not available in
Kentucky and would need to be performed in Florida. Ultimately,
through her health insurance, [the client] was seen by other doctors
and advised that the treatment she had received in Florida was
unnecessary and may have exacerbated her condition. A significant
portion of her ultimate settlement was paid to the Florida clinic.
Information collected during the course of the investigation led the Special
Committee to conclude that
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for-profit lawyer referral services, working in conjunction with other
professional or occupational disciplines, have a great propensity to run
afoul of the Florida Supreme Court’s Rules of Professional Conduct
that govern Florida Bar members and engage in activities that do not
effectively or appropriately serve the interests of the public.
The final report stated that although The Florida Bar currently does not directly
regulate non-lawyer-owned referral services, greater regulation of attorneys who
participate in for-profit referral services is needed to best serve the public interest.
The Special Committee issued seven 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
client to any other professional service in consideration of the
lawyer’s receipt of referrals from any lawyer referral service.
This recommendation was unanimously endorsed by the Special Committee.
The Board Review Committee on Professional Ethics of the Board of
Governors (Board Review Committee) reviewed the final report of the Special
Committee. Rather than follow the first recommendation, the Board Review
Committee proposed amendments to rule 4-7.22 that continue to allow lawyers to
accept referrals from for-profit referral services that also refer clients to other
businesses for services arising out of the same incident. A majority of the Board of
Governors also ignored the first recommendation of the Special Committee and
approved the less restrictive proposals submitted by the Board Review Committee.
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In doing so, the Board of Governors disregarded the potential harm to the public
that non-lawyer-owned, for-profit referral services present.
We have carefully reviewed the final report of the Special Committee and
conclude that the public is at significant risk from for-profit lawyer referral
services that also refer clients to other businesses. We recognize that the anecdotes
presented in the final report do not represent every non-lawyer-owned, for-profit
referral service; however, the potential harm is too great for us to approve the
amendments proposed by The Florida Bar. These amendments would not cure the
multiple concerns highlighted by the Special Committee, but would allow the
troubling incidents discussed in the final report to continue. The dangers that non-
lawyer-owned, for-profit referral services pose to members of the public—who
may be especially vulnerable after they suffer an injury, or when they face a legal
matter that they never anticipated—leads us to conclude that much stricter
regulations upon lawyer referral services are required than those proposed by the
Bar.
Accordingly, we reject the current petition and instruct The Florida Bar to
propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting
referrals from any lawyer referral service that is not owned or operated by a
member of the Bar. We further instruct the Bar to review any other rules or
regulations that address lawyer referral services to determine whether new rules are
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necessary to implement our direction today. Based upon this review, the Bar may
conclude that amendments to, or repeal of, other rules are required. While the
action we take today may be viewed by some as severe, we conclude it is
absolutely necessary to protect the public from referral services that improperly
utilize lawyers to direct clients to undesired, unnecessary, or even harmful
treatment or services. Our action today will also prevent conflicts of interest, such
as where a lawyer feels compelled or pressured to refer a client to another business
operated or controlled by the owner of the referral service so that the lawyer may
continue to receive referrals from that service.
The Florida Bar shall submit a new petition on or before May 24, 2016.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., concurring in part and dissenting in part.
I concur with the majority’s rejection of the proposal submitted by the Board
of Governors. But I dissent from the majority’s direction that the Bar 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.”
Majority op. at 6. Instead, I would direct that the Bar propose amendments
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incorporating the proposals recommended by the Special Committee on Lawyer
Referral Services.
Original Proceeding – Rules Regulating The Florida Bar
John F. Harkness, Jr., Executive Director, Ramón A. Abadin, President, Gregory
William Coleman, Past President, Carl B. Schwait, Chair, Board Review
Committee on Professional Ethics, Mary Ellen Bateman, DEUP Division Director,
and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida,
for Petitioner
Timothy Patrick Chinaris, on behalf of 1-800-411-PAIN Referral Service, LLC,
Nashville, Tennessee; Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow,
P.A., Fort Lauderdale, Florida, on behalf of 1-800-Ask Gary; Scott Kevork Tozian
of Smith, Tozian, Daniel & Davis, Tampa, Florida, on behalf of 1-800-Ask Gary;
Greg Anthony Zitani of West Coast Law, PLLC, Sarasota, Florida, on behalf of 1-
800-Ask Gary; and Samuel Grier Wells of GrayRobinson, P.A., Jacksonville,
Florida,
Responding with Comments
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