Last Friday, Avvo submitted comments to the Florida Supreme Court in response to the Florida Bar’s proposed changes to the state’s Lawyer Referral Service Rules. You can read our submission here, but here’s the backstory and highlights:
- This isn’t the first attempt to change the LRS Rules. After the last go-round, the Florida Supreme Court instructed the Bar to go back to the drawing board and create rules that prohibited LRS entities owned by non-lawyers. The court was apparently concerned with the proliferation of such services in Florida, and in particular those that operated with cross-referrals to chiropractors and other medical professionals.[ref]Note that Avvo is *not* a lawyer referral service. Such services are entities that operate in an environment lacking in consumer choice: users are typically sent to whichever attorney has paid the most, bought geographic exclusivity, or is next in the rotation. That’s why many states choose to have more extensive regulation of lawyer referral services than they do of other forms of legal marketing.[/ref]
- The Florida Bar apparently concluded that it couldn’t legally limit LRS to those owned only by lawyers. That’s probably right – it’s hard to see how such a limitation would survive first amendment (and antitrust) scrutiny.
- Instead of going back to the court, the Bar decided to amend the rules. The amendments are not, remotely, what the court asked for. They are also notable for lacking any focus on either consumer harm or benefit. Rather than considering how the rules could enable Floridians to get better access to both legal services and information about legal services, the Bar simply futzed around with its rules.
- In its futzing, the Bar managed to arrive at a particularly perverse result. The existing LRS rule – designed to protect against a particular type of marketing that is inherently deceptive – has been largely watered down. And, to make matters far worse, it’s now going to apply to virtually every company that lawyers use for marketing.
That means Florida lawyers will need to start gathering diligence materials for marketing providers. Those providers will have to submit annual lists of their Florida participants to the state bar. The ads that such providers run will need to comply with Florida’s picayune advertising rules (and, perhaps, even require pre-approval by Florida’s advertising review committee). This drives several results, none of them good:
- The Bar is signing itself up for a massive new compliance program. Monitoring “qualifying providers” for compliance and processing all of those annual lists is going to cost the Bar a ton of money and time. Or, more likely, the Bar will simply enforce the rules in a highly haphazard and inconsistent fashion – making it unclear to lawyers and providers alike whether their marketing activities are in compliance with the Bar’s interpretation of its rules.
- Diligent members of the Florida Bar will be even more reticent to provide consumers with information about legal services, concerned that their marketing providers – many of whom will be national or global companies serving many industries – are not technically in compliance with Florida’s rules.
- In a similar fashion, the new rules – which attempt, via the comments, to make things like fee-splitting and pay-for-performance marketing per se against the rules (despite, naturally, any evidence that such practices are inherently bad for consumers) – will make it harder for Florida attorneys to get comfortable with innovative attempts to expand access to justice (like Avvo Legal Services).
And of course, the added irony: Florida – like all states – is suffering from an acute crisis where consumers can’t get help with their legal problems. As the Florida Bar itself notes, over 70% of civil court defendants are representing themselves. Help with even routine legal problems is out of reach of the vast majority of consumers. The system is hobbled from both ends. First, by a hidebound profession that can’t see beyond full-scope, gold-plated representation[ref] And, for many, a burning desire to protect its monopoly at all cost.[/ref] And second, by a regulator so focused on the minutiae of its rules that it can’t see how its meddling is hampering the availability of information and the market for innovative legal services.
It’s not like this issue has been lost on the Florida Supreme Court. Less than two years ago, Chief Justice Jorge Labarga kicked off the Florida Commission on Access to Civil Justice. Here’s hoping the Court is able to see, where the Bar seemingly cannot, how badly these Rules are dis-serving the needs of Floridians.