Last month, I did something I hadn’t done in 21 years. I put on a suit, grabbed my notes, and argued a case in court.
And not any old court: this hearing was in front of the Florida Supreme Court. The Court was hearing a petition by the Florida Bar to change its lawyer referral service rules.
In our view, the Bar’s changes were bad for on many levels. They didn’t address the problem at hand (alleged cross-referral of legal clients for unneeded medical services). They created a cumbersome new set of compliance obligations. They watered down protections currently applicable to Florida lawyer referral services. And, by bringing virtually all forms of legal marketing within the ambit of the rule, they threatened to chill the availability of legal information and the willingness of Florida lawyers to offer innovative new services to the public.
So Avvo filed comments opposing the Bar’s rule change. We weren’t the only ones; it seemed that no one liked what the Bar was proposing. When it came down to it, Avvo was one of four parties arguing against the rules, and I was allotted all of 6 minutes with which to do so.
Appellate arguments call for a tricky balance. You’ve got to be ready to make your argument, for the allotted time, without facing a single question. But you’ve also got to be ready to abandon your prepared work and face down questions from the bench for as long as the Justices desire.
I’ve always preferred the latter, and as it turned out, the Court had lots of questions for me. The video is available here; my bit starts at 23:00. As you’ll see, the Court was far more interested in hearing about Avvo and online legal marketing than it was about my nuanced First Amendment arguments.
It was gratifying – and fun – to argue in court again after so many years. And the Florida Supreme Court’s Greek Revival courtroom in Tallahassee was an inspiring venue in which to do so.
The capper came last week when the Court rejected the Bar’s proposed rules. While I’d like to claim that result on the force of my advocacy, it was the only reasonable outcome possible. The Bar had been asked to address a specific issue, and had used that opportunity to attempt wholesales changes to the rules.
It’s a favorable outcome, and I’m happy to see it. But at the same time, the process demonstrated how far from effective Bar regulation can be. In any other agency, regulatory changes would go though an administrative law process – with workshops, open hearings, and comments – to vet issues before adopting new rules. Florida, like many states, devolves that process to the Bar. The final arbiter is then the Supreme Court, which deals with the matter in much the same way it would treat any other adversary proceeding.
It’s not that such a system is doomed to failure. It could work, given enough structure, direction, and discipline by those involved. But the odds are long. Market participants drive the process, and these lawyers often have parochial interests. They also rarely have experience with administrative rulemaking. And the Florida Supreme Court sits at a remove, only dealing with the process near its conclusion.
For the Supreme Court to actively supervise this work – work that impacts the availability of legal services to the public – it’s got to get more involved. It must oversee and direct the Bar throughout the rulemaking process. This could include hiring out neutral professionals to run rulemaking. Or having a subcommittee of Justices deeply involved throughout (and there’s some indication in the Court’s order that it plans to do something along these lines).
This problem isn’t unique to Florida. Most lawyer regulators do their rulemaking in a similar way. But in a state with a bar as large and fractious as Florida’s, the weaknesses of the process are particularly evident.