The Florida Bar has once again been stymied in an effort to (slightly) liberalize its advertising rules.
Four years ago, it was the Florida Supreme Court redlining the Bar’s lawyer website rules, resulting in what I like to call the “Florida Law Firm Website Developer Full Employment Act” – an enactment which is still being litigated. And now the court has rejected the Bar’s approach to lawyer referral services, holding that lawyers in the Sunshine State simply flat-out can’t work with lawyer referral services that aren’t owned by lawyers.
The putative target of the court’s ire is outfits like “Ask Gary,” a lawyer-and-doctor referral service that has been no stranger to controversy and allegations of fraud. And as the court points out, there may be some problems with these services, which channel callers to participating medical and legal providers:
[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.
OK, so that’s not good.
The Florida Bar Special Committee on Lawyer Referral Services proposed a number of regulatory changes, including limitations on accepting and making cross-referrals with doctors for the same accident. The Bar didn’t accept these proposals, instead proposing a lighter set of regulations.
The Supreme Court was not impressed. It responded by backhanding the Bar, saying that Florida lawyers simply can’t work with lawyer referral services that aren’t owned by Florida lawyers. Period.
That’s pretty big smackdown.
Now, it certainly wouldn’t be outlandish to ask whether the Florida Supreme Court got so churlish that it exceeded its power to limit lawyer speech. Likewise, it might be fair to inquire about what’s so special about lawyer-owned referral services (other than the Bar’s regulatory leverage over their owners) that keeps them from having the same problems the court identifies with the “Ask Gary”s of the world.
But whatever – I have a more parochial concern: the fact that some hand-wringing lawyers will invariably perceive this decision as suddenly preventing Florida attorneys from working with Avvo.
So if you’re wondering the same thing, here’s the simple answer: It doesn’t.
Why? Because Avvo isn’t a lawyer referral service.
I’ve written about this before, but I will summarize it again here: a “lawyer referral service” vets a potential client’s concern and refers that person to a specific attorney. The problem is in the “vetting:” many such services market themselves as “matching” clients with the right lawyer. Many potential clients no doubt think that means that their unique needs are being lined up with the best possible participating attorney . . . rather than being sent to whichever lawyer has “bought” that lead.
It’s easy for that kind of marketing approach to cross into consumer deception, and that’s why some level of regulation may be appropriate.
Now, someone might go read Florida Rule of Professional Conduct 4-7.22(c), which defines “lawyer referral services,” and say, “that’s a pretty broad definition – why shouldn’t that include Avvo?”[ref]
(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.[/ref]
You’d have to squint pretty hard to get that to apply to any of the products and services Avvo provides. And remember: advertising regulations can’t be read broadly. The state has the burden of showing that its regulation is both necessary and no more extensive than necessary – which means these regulations must be read narrowly. And I have to imagine that the members of the Florida Supreme Court are smart enough, and well-versed enough in constitutional law, to know that they can’t promulgate a rule that would purport to obviate any-and-all lawyer participation in non-lawyer owned advertising programs.
Because that would be crazy – and contrary to 38 years of well-established First Amendment law.
I’ll further note: Florida’s rules distinguish between “lawyer referral services” and “lawyer directories,” which are defined in Rule 4-7.23(a) as:
A lawyer directory is any . . . entity that receives any consideration . . . for publishing a listing of lawyers together in one place . . . in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers.”
Now, I won’t comment at this point about the overreach of this particular rule, but the fact that it (along with the rest of Florida’s extensive advertising regulation) exists show that the Florida Bar considers referral services to be a distinct subset of lawyer advertising.
So I don’t think the Florida Bar will get confused about this, but some lawyers might, so I wanted to lay this all out here.
However, if the Bar wants to use this opportunity to tighten up its definition of a “lawyer referral service,” that wouldn’t be such a bad thing . . .