Fla. Bar skeptical of proposals to expand legal services

By Caroline Bolado | June 3, 2022, 9:52 p.m. EDT
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Florida’s Supreme Court on Thursday amended Florida Bar Rules to allow non-lawyers to help govern nonprofit legal service providers, but that’s just one of many recommendations from a committee at odds with the Florida Bar on how to improve access to legal services and adapt to changing technology. .

The Florida Supreme Court approved one of the few changes the committee and the bar could agree on: an amendment to Florida Bar Rule 4-5.4, which prohibits ownership of a law firm by Non-Lawyers, which allows not-for-profit legal service providers to organize themselves into corporations and have non-lawyers sit on their boards of directors.

The court said the amendment “recognizes the existing charitable corporate structure of many not-for-profit legal service providers.”

“It’s just an acknowledgment of reality,” said John Stewart of GrayRobinson PA, who chaired the special committee to improve the delivery of legal services. “That’s how they operate across the country. You can imagine that a board that does nonprofit legal services will often include community members who aren’t lawyers.”

But the court has so far rejected changes proposed by the committee, opposed to the Florida bar, such as allowing fee-sharing with non-lawyers and allowing them to hold minority stakes in law firms.

“These changes would so profoundly transform the practice of law in Florida that they should not be allowed, even on a trial basis, without clear and compelling empirical evidence that they will help address access to justice in meaningful ways with little or no risk to the public,” Florida Bar President Michael Tanner wrote in a December letter responding to the committee’s recommendations.

Stewart, a former president of the Florida Bar, pointed out that you can’t collect data on something that’s prohibited.

“We were proposing a lab concept, to allow the rules to be bent in a specific environment for a limited period of time, so we could see if the needs are being met and if the audience is being protected,” Stewart said.

The Supreme Court’s decision on Thursday was a “really light touch,” according to Stewart, and was anticipated in a letter the court sent to the Florida bar in March asking for alternative proposals. In the letter, the court said it would adopt the recommendation to change Rule 4-5.4 but not the others and asked the bar to provide other options to “improve the delivery of legal services to Florida consumers.”

The bar has since announced that its own group, the Select Committee on Enhanced Public Access to Legal Services, will look into the matter and present a proposal before the court’s deadline: December 30, 2022.

“The Florida Bar looks forward to continuing to improve the delivery of legal services to Florida consumers, as directed by the court,” Florida Bar spokeswoman Jennifer Krell Davis said.

Stewart first wrote to the Supreme Court to suggest reviewing the rule changes in 2019, during his one-year term as president of the Florida bar. In his letter, he suggested a study on how rules governing the practice of law could be changed to improve how Florida consumers access legal services.

Chief Justice Charles Canady appointed Stewart to chair a committee to study the issues of attorney advertising, referral fees, cost sharing, entity regulation, regulation of online service providers and the regulation of non-lawyer providers of limited legal services, according to the letter.

Stewart said the committee was not focused on helping residents with the lowest incomes, but on “the vast majority of middle-class and small-business Americans who don’t get legal help.”

“Our mission has been driven by people and companies who can afford to pay lawyers in some way, but can’t or can’t because of the way we charge ourselves. “Stewart said.

In June 2021, the committee released its recommendations, which include creating a Law Practice Innovation Lab program to test some of the proposals such as allowing non-lawyer employees to acquire minority stakes in law firms. lawyers where they work, allowing fees to be shared with non-lawyers and letting paralegals provide certain services to clients.

The committee turned to Arizona and Utah, both of which have relaxed their regulations regarding the involvement of non-lawyers in the provision of legal services. Utah did so in a “regulatory sandbox” where those changes could be tested in a controlled environment, according to the committee’s report.

The committee said the work of the non-lawyer owner should actively support the work of the law firm. A nurse analyzing the medical records of a personal injury company might, for example, have a non-controlling interest in the company.

According to the report, this could open up new ways for lawyers to work with technology companies and others to provide more innovative ways to deliver services. Removing the cost-sharing ban could allow a technology company and a law firm to streamline referrals and improve the way services are delivered to clients, the committee said.

The response from the Florida Bar Board of Governors was a resounding no. In the letter sent last December, Tanner said allowing non-lawyers to hold interests in law firms would compromise the independence of the legal profession by creating a conflict of interest between lawyers bound by certain ethical obligations. and non-lawyers whose objective would be to increase the firm’s profitability.

Tanner pointed out that a similar proposal was considered and rejected 20 years ago, but the special committee did not review this work.

“The basic response to the special committee’s arguments in the report on these two proposed changes is essentially the same response made 20 years ago against law firms owning non-lawyers: there is no denying that the inducement of non-lawyers -lawyers to own a law firm is to make money,” Tanner said.

The bar also received hundreds of comments, mostly negative, from bar members in response to the committee’s proposals. Lawyers have expressed concern that lawyers are being pressured by non-lawyer landlords to engage in unethical behavior, such as inflating claims against insurance companies or failing to act in the best interest of the client.

“When the practice of law becomes just another business like a laundromat, those with little to lose if something goes wrong will be cut off,” attorney Mario Musil said in a commentary. “A non-lawyer has no license to worry about, no name to protect.”

Stewart said he thinks the Supreme Court’s instruction to the bar to come up with its own solutions is an indication that the justices “want to see movement happen.” But he acknowledges that when it comes to regulating the legal profession, change is slow.

“My committee was taking us from 0 to 100, and generally the profession is uncomfortable with that,” Stewart said. “When I came on as president in 2019, I said this is happening, and if we’re going to be the architects of what that change looks like, we’re going to have to get in on the game.”

–Edited by Emily Kokoll.

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