# Supreme Court of Florida

____________

No. SC16

- 1470

____________

IN RE: AMENDMENTS TO THE RU LES REGULATING THE FLORIDA BAR

– SUBCHAPTER 4

- 7 (LAWYER REFERRAL SERVICES)

.
[March 8, 2018]

PER CURIAM.

The Florida Bar petitions this Court to amend the Rules Regulating the

Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

T h e Bar pr oposes comprehensively amending rule 4

- 7.22 (Lawyer Referral

Services) , and amending or deleting fi ve othe r rules as a result of those

amendments

. The Bar’s petition stem s from In re Amendments to Rule Regulating

t he Florida Bar 4

- 7.22

—

Lawyer Referral Services , 175 So. 3d 779 (Fla. 2015)

,

where the Court rejected amendments to rule 4

- 7.22 proposed by the Bar and

directed the Bar to 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. ” Id. at 781. The Court in that case found that t he Bar had

disregarded the findings of the Special Committee on Lawyer Referral Services

(Special Committee) in its July 2012 Final Report as to the potential harm- 2

-

nonlawyer

- owned for

- profit referral services pose to the public. Id. 1 In the report,

the S pecial Committee concluded

, after conducting a n investigation into the

regulation and practices of lawyer referral services in Florida

, that for

- profit lawyer

referral services, particularly those that work in conjunction with other

professionals or occupa tions and are not owned or operated by a member of the

Bar, are more likely to run afoul of the Rules Regulating the Florida Bar and

engage in activities that do not serve the public interest. Id. at 780

- 81. The Special

Committee recommended greater regul ation of lawyer participation in for

- profit

referral ser vices and issued seven specific 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 fr om referring a

1 . The Sp ecial Committee was tasked with the following:

[R] eviewing 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 t he lawyer advertising rules.

In re Amend. to Rule Reg. the Fla. Bar 4

- 7.22

— Lawyer Referral Services , 175 So. 3d at 779 (second, third, and fourth alterations in original).- 3

-

client to any other professional service in consideration of the lawyer’ s receipt of referrals from any lawyer referral service.

Id. at 781.

T he amendments proposed by the Bar in this case , despite the Court’s clear

direction, do not preclude lawyers from accepting referrals from lawyer referral

services that are not owned or operated by a member of the Bar. The proposed

amendments instead address lawyer participation in “matching” and oth er similar

service s not currently subject to regulation by the Bar that connect prospective

clients with lawyers. Th e proposed amendments to rule 4

- 7.22 establish a single

regulatory scheme under which lawyer participation in such services is sub ject to

t he same restrictions as lawyer referral services, lawyer directories, and other like

services in which lawyer partic ipation is currently regulated. The Bar’s proposal

prohibits lawyer participation in a ny service that connects prospective clients to

lawyers for a fee

, or any other type of benefit

, unless the service complies with rule

4

- 7.22 an d all other applicable rules

.

In add ition, the Bar proposes deleting or amending five other rules as a

result of its proposed amendmen ts to rule 4

- 7.22. B ecause lawyer directories are

included in the proposed amendments to rule 4

- 7.22, the Bar proposes deleting rule

4

- 7.23 (Lawyer Directory) . It also proposes amending rules 4

- 7.12 (Required

Content); 4

- 7.13 (Deceptive and Inherently Mi sleading Advertisements); 4

- 7.16

(Presumptively Valid Content); 4

- 7.17 (Payment for Ad vertising and Promotion)- 4

-

to include terminology consistent with the proposed amendments to rule 4

- 7.22

.

The Board of Gover nors approved the proposed amen dments on a voic e vote with

one objection. Pursuant to r ule 1

- 12.1(g), the Bar published formal notice of its

intent to file a petition recommending amendments to the Bar Rules. Th e Court

received eight comments and the Bar filed a response.

H avin g considered the Bar’s proposals, the comments filed, the Bar’s

response, and having had the benefit of o ral argument, the Court adopts the

amend ments to the Rules Regulating the Florida Bar as proposed by the Bar.

These amendments, t hough not consistent with our directive in I n re Amendments

to Rule Regulat ing t he Florida Bar 4

- 7.22

— Lawyer Referral Services

, are

necessary to ensure that all services that connect prospective clients to lawyers

conform to the Rules Regulating the Florida Bar and operate in a manner

consistent with the public interest. These amendment s do not , however, resolve

our concern with how some lawyer refer ral services operate in Florida, especially

those that refer clients to other professionals and occupational disciplines for

servic es arising from the same incident. T he findings of the Special Committee on

this matter are troubling and we continue to believe additional measures are need ed

to ensure th e public is not exposed to harm . We therefore direct the Bar to submit

a petition within ninety days proposing amendments to rule 4

- 7.22

, and any other

rule necessary

, to implement the Special Committee’s first recommendation.- 5

-

Accordingly, the Rules Regulating the Florida Bar are hereby amended as

set forth in the appendix to this opini on. New language is underscored; deleted

language is struck through. The amendments shall become effective on April 30,

2018, at 12:01 a.m

.

It is so ordered.

LABARGA, C.J., and PARIENTE

, QUINCE, and POLSTON, JJ., concur. LAWSON, J., concur s in part and d issent s in part with an opinion, in which CANADY, J., concur s

. LEWIS, J., dissents

.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

LAWSON, J., concurring in part and dissenting in part.

I fully agree with t he majority’s decision to adopt the proposed rules in this

case. I dissent from that portion of the opinion directing The Florida Bar to file a

petition within ninety days proposing amendments to implement the Special

Committee’s July 2012 recommendation to prohibit a Florida lawyer from

accepting 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, transacti on or circumstance.” Majority o p. at 2 . The few individuals who

still express support for this recommendation have i dentified only two entities to

which the prohibition would apply (“411 Pain” and “Ask Gary,” both of which

refer clients to legal and medical professionals) and have not identified a single- 6

-

incident of misconduct by those entities or by any lawyer or medical professional

who takes referrals from those entities. Although I certainly recognize the

potential mischief that could flow from doctor/lawyer cross

- referral relationships,

those relationships exist and appear to be common. I have not been able to discern

any basis for concluding that Ask Gary’s or 411 Pain’s model of connecting an

injured citizen to a lawyer

— which this nearly six

- year

- old recommendation would

prohibit

— poses any danger not existent in direct doctor/lawyer referral

relationships

— which no one has ever suggested could or should be barred.

Additionally, I would note that under the newly adopted rules, Florida lawyers will

be prohibited from taking referrals from 411 Pain and As k Gary if these entities

refuse to cooperate with any Florida Bar inquiry into their practices. The same is

true of all other “qualified providers” operating in Florida. Accordingly, these

rules will give The Florida Bar a way to determine whether further regulation is

needed in this area. I would wait until The Florida Bar has m ade that

determination, based upon hard data rather than innuendo and supposition, and

would trust the Bar’s conclusion (overwhelmingly supported) that it would be ill

advised to adopt a rule based upon the now

- outdated Special Committee

recommendation.

CANADY, J., concurs.- 7

-

Original Proceeding

– Florida Rules Regulating the Florida Bar

Joshua E. Doyle, Executive Director, Michael J. Higer, President, Michelle R. Suskauer, President

- elect, Michael S. Hooker, Chair, Carl B. Schwait, Past Chair, Board Review Committee on Professional Ethics, John Mitchell Stewart, Chair, Board Technology Committee, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida,

for Petitioner

Bill Wagner, Tampa, Florida; Timothy P. Chinaris, on behalf of 1

- 800

- 411

- PAIN Referral Service, LLC, Nashville, Tennessee; Charles A. Morehead III, on behalf of Broward County Bar Association, Sunrise, Florida; Charles D. Scott, St. Petersb urg, Florida; Josh King, on behalf of Avvo, Inc., Seattle, Washington; Brad Salter and Robert J. Healy of Salter, Healy, LLC, St. Petersburg, Florida; and Tom Gordon, on behalf of Responsive Law, Washington, District of Columbia,

Responding with comments- 8

- Appendix

RULE 4

- 7.12 REQUIRED CONTENT

(a) Name and Office Location. All advertisements for legal employment must include:

(1) the name of at least 1 lawyer, the law firm, the lawyer referral service if the advertisement is for the lawyer referral serv ice, the qualifying provider if the advertisement is for the qualifying provider, or the lawyer directory if the advertisement is for the lawyer directory, responsible for the content of the advertisement; and

(2) the city, town, or county of 1 or more bon a fide office locations of the lawyer who will perform the services advertised.

(b) Referrals. If the case or matter will be referred to another lawyer or law firm, the advertisement must include a statement to such this effect.

(c)

- (d) [No Change]

Comme nt Name of Lawyer or Lawyer Referral Service

All advertisements are required to contain the name of at least 1 lawyer who is responsible for the content of the advertisement. For purposes of this rule, including the name of the law firm is sufficient. A lawyer referral service

, qualifying provider or lawyer directory must include its actual legal name or a registered fictitious name in all advertisements in order to comply with this requirement.

Geographic Location

[No Change]

Referrals to Other Lawyers

[No Change]- 9

-

Language of Advertisement

[No Change]

RULE 4

- 7.13 DECEPTIVE AND I NHERENTLY MISLEADING

ADVERTISEMENTS

A lawyer may not engage in deceptive or inherently misleading advertising.

(a) [No Change]

( b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain:

(1) statements or information that can reasonably be interpreted by a prospective client as a prediction or guaranty of success or specific results;

(2) references to past results unless such the information is objectively verifiable, subject to rule 4

- 7.14;

(3) comparisons of lawyers or statements, words or phrases that characterize a lawyer's or law firm's skills, exper ience, reputation or record, unless such characterization is objectively verifiable;

(4) references to areas of practice in which the lawyer or law firm does not practice or intend to practice at the time of the advertisement;

(5) a voice or image that cre ates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee of the advertising firm. The following notice, prominently displayed would resolve the erroneous impression: “Not an employee or member of l aw firm”;

(6) a dramatization of an actual or fictitious event unless the dramatization contains the following prominently displayed notice: “DRAMATIZATION. NOT AN ACTUAL EVENT.” When an advertisement includes an actor purporting to be engaged in a parti cular profession or occupation, the advertisement must include the following prominently displayed notice: “ACTOR. NOT ACTUAL [ . . . . ]”;- 10

-

(7) statements, trade names, telephone numbers, Internet addresses, images, sounds, videos or dramatizations that s tate or imply that the lawyer will engage in conduct or tactics that are prohibited by the Rules of Professional Conduct or any law or court rule;

(8) a testimonial:

(A) regarding matters on which the person making the testimonial is unqualified to evaluat e;
(B) that is not the actual experience of the person making the testimonial;

(C) that is not representative of what clients of that lawyer or law firm generally experience;

(D) that has been written or drafted by the lawyer;

(E) in exchange for which the person making the testimonial has been given something of value; or

(F) that does not include the disclaimer that the prospective client may not obtain the same or similar results;

(9) a statement or implication that The Florida Bar has approved an advertisement or a lawyer, except a statement that the lawyer is licensed to practice in Florida or has been certified pursuant to chapter 6, Rules Regulating the Florida Bar; or

(10) a judicial, executive, or legislative branch title, unless accompanied b y clear modifiers and placed subsequent to the person’s name in reference to a current, former or retired judicial, executive, or legislative branch official currently engaged in the practice of law. For example, a former judge may not state “Judge Doe (r etired)” or “Judge Doe, former circuit judge.” She may state “Jane Doe, Florida Bar member, former circuit judge” or “Jane Doe, retired circuit judge....”

Comment Material Omissions

[No Change]- 11

-

Implied Existence of Nonexistent Fact

[No Change]

Predictions o f Success

[No Change]

Past Results

The prohibitions in subdivisions (b)(1) and (b)(2) of this rule preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable ver dicts, if the results are not objectively verifiable or are misleading, either alone or in the context in which they are used. For example, an advertised result that is atypical of persons under similar circumstances is likely to be misleading. A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client's actual damages, is also misleading. Such The information ma y create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances. An example of a past result that can be objectively verified is that a lawyer has obtained acquittals i n all charges in 4 criminal defense cases. On the other hand, general statements such as, "I have successfully represented clients," or "I have won numerous appellate cases," may or may not be sufficiently objectively verifiable. For example, a lawyer ma y interpret the words "successful" or "won" in a manner different from the average prospective client. In a criminal law context, the lawyer may interpret the word "successful" to mean a conviction to a lesser charge or a lower sentence than recommended b y the prosecutor, while the average prospective client likely would interpret the words "successful" or "won" to mean an acquittal.

Rule 4

- 1.6(a), Rules Regulating the Florida Bar, prohibits a lawyer from voluntarily disclosing any information regarding a representation without a client's informed consent, unless one of the exceptions to rule 4

- 1.6 applies. A lawyer who wishes to advertise information about past results must have the affected client's informed consent. The fact that some or all of the inf ormation a lawyer may wish to advertise is in the public record does not obviate the need for the client's informed consent.- 12

-

Comparisons

[No Change]

Characterization of Skills, Experience, Reputation or Record

The rule prohibits statements that characteriz e skills, experience, reputation, or record that are not objectively verifiable. Statements of a character trait or attribute are not statements that characterize skills, experience, or record. For example, a statement that a lawyer is aggressive, intell igent, creative, honest, or trustworthy is a statement of a lawyer's personal attribute, but does not characterize the lawyer's skills, experience, reputation, or record. Such These statements are permissible.

Descriptive statements characterizing skills, experience, reputation, or a record that are true and factually verified are permissible. For example, the statement "Our firm is the largest firm in this city that practices exclusively personal injury law," is permissible if true, because the statement is objectively verifiable. Similarly, the statement, "I have personally handled more appeals before the First District Court of Appeal than any other lawyer in my circuit," is permissible if the statement is true, because the statement is objectively verif iable.

Descriptive statements that are misleading are prohibited by this rule. Descriptive statements such as "the best," "second to none," or "the finest" will generally run afoul of this rule, as such statements are not objectively verifiable and are li kely to mislead prospective clients as to the quality of the legal services offered.

Aspirational statements are generally permissible as such statements describe goals that a lawyer or law firm will try to meet. Examples of aspirational words include "go al," "dedicated," "mission," and "philosophy." For example, the statement, "I am dedicated to excellence in my representation of my clients," is permissible as a goal. Similarly, the statement, "My goal is to provide high quality legal services," is perm issible.

Areas of Practice

[No Change]- 13

-

Dramatizations

A re

- creation or staging of an event must contain a prominently displayed disclaimer, "DRAMATIZATION. NOT AN ACTUAL EVENT." For example, a

re

- creation of a car accident must contain the disclaimer. A re

- enactment of lawyers visiting the re

- construction of an accident scene must contain the disclaimer.

If an actor is used in an advertisement purporting to be engaged in a particular profession or occupation who is acting as a spokesperson for the lawyer or in any other circumstances where the viewer could be misled, a disclaimer must be used. However, an authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, may not be used in an advertisement to endorse or recommend a lawyer, or to act as a spokesperson for a lawyer under Rule rule 4

- 7.15.

Implying Lawyer Will Violate Rules of Conduct or Law

Advertisements which state or imply that the advertising lawyers will engage in conduct that violates the Rules of Professional Conduct are prohibited. The Supreme Court of Florida found that lawyer advertisements cont aining an illustration of a pit bull canine and the telephone number 1

- 800

- pitbull were false, misleading, and manipulative, because use of that animal implied that the advertising lawyers would engage in "combative and vicious tactics" that would violate the Rules of Professional Conduct. Fla. Bar v. Pape Fla. Bar v. Pape , 918 So. 2d 240 (Fla.2005).

Testimonials

[No Change]

Florida Bar Approval of Ad or Lawyer

An advertisement may not state or imply that either the advertisement or the lawyer has been approved by The Florida Bar. Such a statement or implication implies that The Florida Bar endorses a particular lawyer. Statements prohibited by this provision include, "This advertisement was approved by The Florida Bar." A lawyer referral service also may not state that it is a "Florida Bar approved lawyer referral service," unless the service is a not

- for

- profit lawyer referral service approved under chapter 8 of the Rules Regulating the Florida Bar. A qualifying provider also may not state that it i s a "Florida Bar approved qualifying provider" or that its advertising is approved by The Florida Bar.- 14

-

Judicial, Executive, and Legislative Titles

This rule prohibits use of a judicial, executive, or legislative branch title, unless accompanied by clear mo difiers and placed subsequent to the person’s name, when used to refer to a current or former officer of the judicial, executive, or legislative branch. Use of a title before a name is inherently misleading in that it implies that the current or former of

ficer has improper influence. Thus, the titles Senator Doe, Representative Smith, Former Justice Doe, Retired Judge Smith, Governor (Retired) Doe, Former Senator Smith, and other similar titles used as titles in conjunction with the lawyer’s name are proh ibited by this rule. This includes, but is not limited to, use of the title in advertisements and written communications, computer

- accessed communications, letterhead, and business cards.

However, an accurate representation of one's judicial, executive, o r legislative experience is permitted if the reference is subsequent to the lawyer's name and is clearly modified by terms such as “former” or “retired.” For example, a former judge may state “Jane Doe, Florida Bar member, former circuit judge” or “Jane D oe, retired circuit judge.”

As another example, a former state representative may not include "Representative Smith (former)" or "Representative Smith, retired" in an advertisement, letterhead, or business card. However, a former representative may state, "John Smith, Florida Bar member, former state representative.”

Further, an accurate representation of one's judicial, executive, or legislative experience is permitted in reference to background and experience in biographies, curriculum vitae, and resumes if accompanied by clear modifiers and placed subsequent to the person’s name

, . For example, the statement "John Jones was governor of the State of Florida from [ . . . years of service . . . ]" would be permissible.

Also, the rule governs attorney adverti sing. It does not apply to pleadings filed in a court. A practicing attorney who is a former or retired judge shall may not use the title in any form in a court pleading. If a former or retired judge uses her previous title in a pleading, she could be sa nctioned A former or retired judge who uses that former or retired judge's previous title of "Judge" in a pleading could be sanctioned

.- 15

- RULE 4

- 7.16 PRESUMPTIVELY V ALID CONTENT

The following information in advertisements is presumed not to violate the provi sions of rules 4

- 7.11 through 4

- 7.15:

(a) [No Change]

(b) Lawyer Referral Services and Qualifying Providers

. A lawyer referral service or qualifying provider may advertise its name, location, telephone number, the referral fee charged, its hours of opera tion, the process by which referrals or matches are made, the areas of law in which referrals or matches are offered, the geographic area in which the lawyers practice to whom those responding to the advertisement will be referred or matched

. A The Florida Bar's lawyer referral service or a lawyer referral service approved by The Florida Bar under chapter 8 of the Rules Regulating the Florida Bar also may advertise the logo of its sponsoring bar association and its nonprofit status.

Comment

[No Change]

RULE 4

- 7.17 PAYMENT FOR ADV ERTISING AND PROMOTI ON

(a) [No Change]

(b) Payment for Referrals. A lawyer may not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising permit ted by these rules, may pay the usual charges of a lawyer referral service, lawyer directory , qualifying provider or other legal service organization, and may purchase a law practice in accordance with rule 4

- 1.17.

(c) [No Change]

Comment

Paying for the Advertisements of Another Lawyer

[No Change]- 16

-

Paying Others for Recommendations

A lawyer is allowed to pay for advertising permitted by this rule and for the purchase of a law practice in accordance with the provisions of rule 4

- 1.17, but otherwise is not p ermitted to pay or provide other tangible benefits to another person for procuring professional work. However, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may parti cipate in lawyer referral programs , qualifying providers, or lawyer directories and pay the usual fees charged by such programs, subject, however, to the limitations imposed by rule s 4

- 7.22 and 4

- 7.23 . This rule does not prohibit paying regular compensati on to an assistant, such as a secretary or advertising consultant, to prepare communications permitted by this rule.

RULE 4

- 7.22 LAWYER REFERRAL SERV ICES REFERRALS, DIRECTORIES AND POOL ED ADVERTISING

(a) Applicability of Rule. A lawyer is prohibited from participation with any qualifying provider that does not meet the requirements of this rule and any ot her applicable Rule Regulating t he Florida Bar.

(b) Qualifying Providers. A qualifying provider is any person, group of persons, association, organizatio n, or entity that receives any benefit or consideration, monetary or otherwise, for the direct or indirect referral of prospective clients to lawyers or law firms, including but not limited to:

(1) matching or other connecting of a prospective client to a lawyer drawn from a specific group or panel of lawyers or who matches a prospective client with lawyers or law firms;

(2) a group or pooled advertising program, offering to refer, match or otherwise connect prospective legal clients with lawyers or law fir ms, in which the advertisements for the program use a common telephone number or website address and prospective clients are then matched or referred only to lawyers or law firms participating in the group or pooled advertising program;

(3) publishing in a ny media a listing of lawyers or law firms together in one place; or

(4) providing tips or leads for prospective clients to lawyers or law firms.- 17

-

(c) Entities that are not Qualifying Providers. The following are not qualifying providers under this rule:

(1) a pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters without expectation of remuneration; and

(2) a loca l or voluntary bar association solely for listing its members on its website or in its publications.

( a d ) When Lawyers May Accept Referrals Participate with Qualifying Providers

. A lawyer may not accept referrals from a lawyer referral service, and it is a violation of these Rules Regulating the Florida Bar to do so, unless the service participate with a qualifying provider as defined in this rule only if the qualifying provider :
(1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer;

(2) receives no fee or charge that constitutes is a division or sharing of fees, unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service is a not

- for

- profit service approved by The Florida Bar pursuant to chapter 8 of these rules;

(3) refers , matches or otherwise connects prospective clients only to persons lawfully permit ted to practice law in Florida when the services to be rendered constitute the practice of law in Florida;

(4) carries or requires each lawyer participating in the service to carry professional liability insurance in an amount not less than $100,000 per cl aim

or occurrence;
(4) does not directly or indirectly require the lawyer to refer, match or otherwise connect prospective clients to any other person or entity for other services or does not place any economic pressure or incentive on the lawyer to make s uch referrals, matches or other connections ;

(5) furnishes provides The Florida Bar, on a quarterly no less than an annual basis, with the names and Florida bar membership numbers of all lawyers- 18

-

participating in the service unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to chapter 8 of these rules ;
(6) furnishes The Florida Bar, on a quarterly basis, with the names of all persons authorized to act on behalf of the ser vice;

(6) provides the participating lawyer with documentation that the qualifying provider is in compliance with this rule unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar p ursuant to chapter 8 of these rules;

(7) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the service qualifying provider or a lawyer who accepts referrals from the service participates with the qualifying provider ;
(8) neither represents nor implies to the public that the service qualifying provider is endorsed or approved by The Florida Bar, unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service is subject approved by The Florida Bar pursuant to chapter 8 of these rules;

(9) uses its actual legal name or a registered fictitious name in all communications wit h the public;

(10) affirmatively states in all advertisements that it is a lawyer referral service; and

(11) affirmatively states in all advertisements that lawyers who accept referrals from it pay to participate in the lawyer referral service

(10) affirma tively discloses to the prospective client at the time a referral, match or other connection is made of the location of a bona fide office by city, town or county of the lawyer to whom the referral, match or other connection is being made; and

(11) does no t use a name or engage in any communication with the public that could lead prospective clients to reasonably conclude that the qualifying provider is a law firm or directly provides legal services to the public

.- 19

-

( b e ) Responsibility of Lawyer. A lawyer w ho accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements or written communications used by the service comply with the requirements of the Rules Regulating the Florida Bar, including the provisions of this sub chapter participates with a qualifying provider:

(1) must report to The Florida Bar within 15 days of agreeing to participate or ceasing participation with a qualifying provider unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to chapter 8 of these rules; and

(2) is responsible for the qualifying provider’s compliance with this rule if:

(A) the lawyer does not engage in due diligence in determining the qualifying provi der’s compliance with this rule before beginning participation with the qualifying provider; or

(B) T he Florida Bar notifies the lawyer that the qualifying provider is not in compliance and the lawyer does not cease participation with the qualifying provid er and provide documentation to The Florida Bar that the lawyer has ceased participation with the qualifying provider within 30 days of The Florida Bar’s notice.

(c) Definition of Lawyer Referral Service. A "lawyer referral service" is:

(1) any person, gr oup 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 advert ising 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 partici pating in the group or pooled advertising program.

A pro bono referral program, in which the participating lawyers do not pay a fee or charge of any kind to receive referrals or to belong to the referral panel, and are undertaking the referred matters with out expectation of remuneration, is not a lawyer referral service within the definition of this rule.- 20

- Comment

Every citizen of the state should have access to the legal system. A person's access to the legal system is enhanced by the assistance of a quali fied lawyer. Citizens often encounter difficulty in identifying and locating lawyers who are willing and qualified to consult with them about their legal needs. It is the policy of The Florida Bar to encourage qualifying providers to: (a) make legal serv ices readily available to the general public through a referral method that considers the client's financial circumstances, spoken language, geographical convenience, and the type and complexity of the client's legal problem; (b) provide information about lawyers and the availability of legal services that will aid in the selection of a lawyer; and (c) inform the publi c where to seek legal services.

Subdivision (b)(3) addresses the publication of a listing of lawyers or law firms together in any media. Any media includes but is not limited to print, Internet, or other electronic media.

A lawyer may not participate with a qualifying provider that receives any fee that constitutes a division of legal fees with the lawyer, unless the qualifying provider is The Florida Bar Lawyer Referral Service or a lawyer referral service approved by The Florida Bar pursuant to chapter 8 of these rules. A fee calculated as a percentage of the fee received by a lawyer, or based on the success or perceived value of the case, w ould be an improper division of fees. Additionally, a fee that constitutes an improper division of fees occurs when the qualifying provider directs, regulates, or influences the lawyer's professional judgment in rendering legal ser vices to the client. Se e e.g. r ules 4

- 5.4 and 4

- 1.7(a)(2). Examples of direction, regulation or influence include when the qualifying provider places limits on a lawyer’s representation of a client, requires or prohibits the performance of particular legal services or tasks, or requires the use of particular forms or the use of particular third party providers, w hether participation with a particular qualifying provider would violate this rule requires a case

- by

- case determination.

Division of fees between lawyers in different f irms, as opposed to any monetary or other consideration or benefit to a quali fying provider, is governed by

r ule 4

- 1.5(g) and 4

- 1.5(f)(4)(D).

If a qualifying provider has more than 1 advertising or other program that the lawyer may participate in, the lawy er is responsible for the qualifying provider’s compliance with this rule solely for the program or programs that the lawyer agrees to participate in. For example, there are qualifying providers that provide a- 21

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directory service and a matching service. If the lawyer agrees to participate in only one of those programs, the lawyer is responsible for the qualifying provider’s compliance with this rule solely for that program.

A lawyer who participates with a qualifying provider should engage in due diligence regarding compliance with this rule before beginning participation. For example, the lawyer should ask The Florida Bar whether the qualifying provider has filed any annual reports of participating lawyers, whether the qualifying provider has filed any adv ertisements for evaluation, and whether The Florida Bar has ever made inquiry of the qualifying provider to which the qualifying provider has failed to respond. If the qualifying provider has filed advertisements, the lawyer should ask either The Florida Bar or the qualifying provider for copies of the advertisement(s) and The Florida Bar’s written opinion(s). The lawyer should ask the qualifying provider to provide documentation that the provider is in full compliance with this rule, including copies of filings with the state in which the qualifying provider is incorporated to establish that the provider is using either its actual legal name or a registered fictitious name. The lawyer should also have a written agreement with the qualifying provider that includes a clause allowing immediate termination of the agreement if the qualifying provider does not comply with this rule.

A lawyer participating with a qualifying provider continues to be responsible for th e lawyer’s compliance with all R u les Regulatin g t he Florida Bar. For example, a lawyer may not make an agreement with a qualifying provider that the lawyer must refer clients to the qualifying provider or another person or entity designated by the qualifying provider in order to receive referrals or leads from the qualifying provider. See r ule 4

- 7.17(b). A lawyer may not accept referrals or leads from a qualifying provider if the provider interferes with the lawyer’s professional judgment in representing clients, for example, by requiring the referr al of the lawyer’s clients to the qualifying provider, a beneficial owner of the qualifying provider, or an entity owned by the qualifying provider or a beneficial owner of the qualifying provider. See r ule 4

- 1.7(a)(2). A lawyer also may not refer client s to the qualifying provider, a beneficial owner of the qualifying provider, or an entity owned by the qualifying provider or a beneficial owner of the qualifying provider, unless the requirements of rules 4

- 1.7 and 4

- 1.8 are met and the lawyer provides wr itten disclosure of the relationship to the client and obtains the client’s informed consent confirmed in writing. A lawyer participating with a qualifying provider may not pass on to the client the lawyer’s costs of doing business with the qualifying pro vider. See r ules 4

- 1.7(a)(2) and 4

- 1.5(a).- 22

- RULE 4

- 7.23 LAWYER DIRECTOR Y

(a) Definition of Lawyer Directory. A lawyer directory is any person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers. A local or voluntary bar association that lists its members on its website or in its publications is not a lawyer directory under this rule. This rule does not apply to traditional telephone directories.

(b) When Lawyers May Advertise in a Directory. A lawyer may not advertise in a directory unless the directory:

(1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer;

(2) receives no fee or charge that constitutes a division or sharing of fees;

(3) lists only persons lawfully permitted to practice law in Florida when the services to be rendere d constitute the practice of law in Florida;

(4) responds in writing, within 15 days, to any official inquiry by bar counsel when bar counsel is seeking information described in this subdivision or conducting an investigation into the conduct of the direct ory or a lawyer who pays to be listed in the directory;

(5) neither represents nor implies to the public that the directory is endorsed or approved by The Florida Bar;

(6) uses its actual legal name or a registered fictitious name in all communications wit h the public; and

(7) affirmatively states in all advertisements that it is a legal directory or lawyer directory.

(c) Responsibility of Lawyer. A lawyer who advertises in a lawyer directory is responsible for ensuring that any advertisements or written c ommunications used by the directory comply with the requirements of the Rules Regulating the Florida- 23

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Bar, and that the directory is in compliance with the provisions of this subchapter. It is a violation of these Rules Regulating the Florida Bar and a fail ure of such responsibility if the lawyer knows or should have known that the directory is not in compliance with applicable rules or if the lawyer failed to seek information necessary to determine compliance.