Panel pushes for tougher referral service rules
The Florida Bar News August 15, 2012
By Gary Blankenship
Private referral services that do both medical and legal referrals may be causing conflicts of interest for attorneys belonging to those services and resulting in the unlicensed practice of law in the way some callers are signed up with law firms.
Those are among the findings in the final report of the Special Committee on Lawyer Referral Services. The report, which includes a recommendation that lawyers using referral services be required to report that status to the Bar, was presented to the Bar Board of Governors at its July 27 meeting in Miami Beach.
The special committee also proposed tightening conflict of interest rules, which could prevent lawyers from joining referral services that also refer callers to other professional services, such as medical treatment or loan modifications. Florida has seen a plethora of referral services spring up in recent years, most offering medical and legal referrals to callers.
Bar President Gwynne Young said she expects the committee’s suggestions to be acted on.
"We will refer it to the appropriate places to be implemented," she told the board after the special committee gave its report.
Board member Carl Schwait, chair of the Board Review Committee on Professional Ethics, said before the meeting he hopes his committee will have a chance to work on the special committee’s proposals. The BRCPE two years ago did a complete overhaul of the Bar’s advertising rules — except for those affecting lawyer referral services.
Now that the special committee has weighed in, Schwait said he would like to finish the work. He also told the board, during his report on BRCPE activities, that the Supreme Court will have oral arguments on the advertising rules amendments on September 7.
The report was criticized by one company that runs a medical and legal referral service, 1-800-411-PAIN. Tim Chinaris, an attorney who represents the company, said current Bar rules cover any issues not addressed by the committee.
"The committee’s report identifies ‘problems’ allegedly related to the operation of lawyer referral services and calls for stringent new rules, despite the fact that every one of the ‘problems’ is already the subject of one or more existing Bar rules," Chinaris said in a statement to the Bar News. "We trust that the Board of Governors will respond to the report in a measured way that protects both the public and the constitutional rights of lawyer referral services and the attorneys who participate in them. Adopting rules designed to restrict competition would unfairly disadvantage small firms and newer attorneys who need tools to compete with the massive amount of advertising generated by personal injury mega-firms, and would provide the public with fewer choices for legal services at a time when more competition, not less, is needed."
Board member and commiteee Chair Grier Wells said the special committee made three main findings and seven recommendations to deal with those findings. One finding had to do with improper solicitation of potential clients, either by attorneys or through third parties, he said.
"Attorneys were meeting with clients at the request of these referral services or clinics to which they were referred without a request by the client," Wells said. "In many cases they [clients] were forced to sign up with a lawyer before they could even seek treatment [at a clinic]."
The second finding concerned potential conflicts of interest. These included whether a lawyer could effectively negotiate on behalf of a client for lower medical costs with a medical facility owning the service that referred the client and from which the lawyer hopes to receive more referrals.
In addition, "This is simply a conclusion about the conduct of a lawyer participating in a lawyer referral service where there’s at least an unspoken quid pro quo of referrals back and forth represents a conflict of interest," Wells said.
The special committee’s report also said, "In addition to cross referrals of accident victims to clinics and lawyers, there is evidence of attorneys participating in decisions regarding medical treatment, and urging clients to continue treatment with referral clinics contrary to stated desires of the client."
The final finding was that using nonlawyers to approach or sign clients for representation raised UPL questions. Wells said the special committee found evidence that nonlawyer employees of law firms and employees of clinics were approaching patients at clinics and getting them to sign up with lawyers. In some cases, he said, they were told they would not receive medical treatment until they had signed the documents hiring a lawyer who was typically authorized to seek personal injury protection (PIP) coverage on the client’s behalf.
"Employees of the attorney, or employees of referral services counseling clients, may be engaged in the unlicensed practice of law," Wells said.
To address those findings, the committee made seven recommendations:
* Lawyers may not accept referrals from services that also refer callers for other professional services "for the same incident, transaction or circumstance." Likewise, lawyers may not refer their clients to the referral service for those other professional services.
* A lawyer accepting referrals from a referral service must register with the Bar, including the listing of all referral services in which the lawyer participates.
* One lawyer within a law firm must be designated as the responsible party in the firm for receiving or accepting client referrals from a service.
* A lawyer may not initiate contact with a referred client. Instead, "all such contact must be initiated by the prospective client."
* A lawyer must provide complete disclosure to a prospective client referred by a service about the lawyer’s participation in referral services.
* The Bar should step up enforcement of its rules on lawyers participating in referral services.
* The Bar should increase public education about rules and regulations on lawyers participating in referral services.
For more information or for a free consultation, contact Scott and Fenderson, PA Injury and Family Law Attorneys, by calling 727-321-0099 or view our web site http://www.scottandfenderson.com