Request for Comments and Assistance on Multidisciplinary Practice and Ancillary Business

• Proposed Rule Changes

Rule 4-5.8. Contractual Relationship Between Lawyers and Nonlegal Professionals.

(a) The practice of law has an essential tradition of complete independence and uncompromised loyalty to those it serves. Recognizing this tradition, clients of lawyers practicing in Florida are guaranteed independent professional judgment and undivided loyalty uncompromised by conflicts of interest.  Indeed, these guarantees represent the very foundation of the profession and allow and foster its continued role as a protector of the system of law. Therefore, a lawyer must remain completely responsible for his or her own independent professional judgment, maintain confidentiality of information relating to a client’s representation, preserve funds of clients and third parties in the lawyer’s control, and otherwise comply with the legal and ethical principles governing lawyers in Florida.

Multidisciplinary practice between lawyers and nonlawyers is incompatible with the core values of the legal profession and therefore, a strict division between services provided by lawyers and those provided by nonlawyers is essential to protect those values. However, a lawyer or law firm may enter into and maintain a contractual relationship with a nonlegal professional or nonlegal professional service firm for the purpose of offering to the public, on a systematic and continuing basis, legal services performed by the lawyer or law firm, as well as other nonlegal professional services, notwithstanding any other provisions of these Rules Regulating The Florida Bar, provided that:

(1) The profession of the nonlegal professional or nonlegal professional service firm is included in a list established and maintained by The Florida Bar Board of Governors based on recommendations of the Special Commission on Multidisciplinary Practice and Ancillary Business.

(2) The lawyer or law firm neither grants to the nonlegal professional or nonlegal professional service firm, nor permits such person or firm to obtain, hold or exercise, directly or indirectly, any ownership or investment interest in, or managerial or supervisory right, power or position in connection with the practice of law by the lawyer or law firm, nor, as provided elsewhere in these Rules Regulating The Florida Bar, shares legal fees with a nonlawyer or receives or gives any monetary or other tangible benefit for giving or receiving a referral; and

3. The fact that the contractual relationship exists is disclosed by the lawyer or law firm to any client of the lawyer or law firm before the client is referred to the nonlegal professional service firm, or to any client of the nonlegal professional service firm before that client receives legal services from the lawyer or law firm; and the client has given informed written consent and has been provided with a copy of the “Statement of Client’s Rights In Cooperative Business Arrangements” provided elsewhere in these Rules Regulating The Florida Bar.

(b) For purposes of this rule:

(1) Each profession on the list maintained under this rule, approved by  The Florida Bar Board of Governors upon application of a member of The Florida Bar, upon a determination that the profession is composed of individuals who, with respect to their profession:

(A) have been awarded a Bachelor’s Degree or its equivalent from an accredited college or university;

(B) are licensed to practice the profession by an agency of the State of Florida or the United States Government; and

(C) are required under penalty of suspension or revocation of license to adhere to a code of ethical conduct that is reasonably comparable to that of the legal profession.

(2) The term “ownership or investment interest” shall mean any such interest in any form of debt or equity, and shall include any interest commonly considered to be an interest accruing to or enjoyed by an owner or investor.

(c) Subsection (a)(1) shall not apply to relationships consisting solely of nonexclusive, noncontractual referral agreements or understandings between a lawyer or law firm and a nonlegal professional or nonlegal professional service firm.

4-5.9 COOPERATIVE BUSINESS ARRANGEMENTS BETWEEN LAWYERS AND NON-LEGAL PROFESSIONALS.

(a) Application.  This rule shall apply to all lawyers who, pursuant to a cooperative business arrangement:

(1) undertake to provide legal services to a client referred by a nonlegal service provider;  or

(2) refer an existing client to a nonlegal service provider.

(b) Cooperative Business Arrangement.  A “cooperative business arrangement” is a contractual relationship between a lawyer or law firm and a nonlegal professional or nonlegal professional service firm for the purpose of offering to the public, on a systematic and continuing basis, legal services performed by the lawyer or law firm, as well as other nonlegal professional services, as authorized in these Rules Regulating The Florida Bar.

(c) List of Professions.  Based on recommendations of the Special Commission on Multidisciplinary Practice and Ancillary Business, the Florida Bar Board of Governors shall establish and maintain a list of professions, designated by The Florida Bar Board of Governors sua sponte or approved by them upon application of a member of a nonlegal profession or nonlegal professional service firm, with whose members a lawyer may enter into a cooperative business arrangement to perform legal and nonlegal services as authorized elsewhere in these Rules Regulating The Florida Bar.

(d) Inclusion in the List of Professions.  A profession shall be eligible for inclusion in the list if the profession is composed of individuals who, with respect to their profession, meet the requirements set forth elsewhere in these Rules Regulating The Florida Bar.

(e) Statement of Client’s Rights in Cooperative Business Arrangements.  In the furtherance of a cooperative business arrangement, (a) prior to the commencement of legal representation of a client referred by a nonlegal service provider or (b) prior to the referral of an existing client to a nonlegal service provider, a lawyer shall provide the client with a statement of client’s rights. That statement shall include a consent to the referral to be signed by the client and shall contain the following:

STATEMENT OF CLIENT’S RIGHTS IN COOPERATIVE BUSINESS ARRANGEMENTS

Your lawyer is providing you with this document to explain how your rights may be affected by the referral of your particular matter by your lawyer to a nonlegal service provider, or by the referral of your particular matter by a nonlegal service provider to your lawyer.

To help avoid any misunderstanding between you and your lawyer please read this document carefully. If you have any questions about these rights, do not hesitate to ask your lawyer.

Your lawyer has entered into a contractual relationship with a nonlegal professional or professional service firm, in the form of a cooperative business arrangement which may include sharing of costs and expenses, to provide legal and nonlegal services. Such an arrangement may substantially affect your rights in a number of respects. Specifically, you are advised:

1. A lawyer’s clients are guaranteed the independent professional judgment and undivided loyalty of the lawyer, uncompromised by conflicts of interest. The lawyer’s business arrangement with a provider of nonlegal services may not diminish these rights.

2. Confidences and secrets imparted by a client to a lawyer are protected by the attorney-client privilege and may not be disclosed by the lawyer as part of a referral to a nonlegal service provider without the separate written consent of the client.

3. The protections afforded to a client by the attorney-client privilege may not carry over to dealings between the client and a nonlegal service provider. Information that would be protected as a confidence or secret, if imparted by the client to a lawyer, may not be so protected when disclosed by the client to a nonlegal service provider. Under some circumstances, the nonlegal service provider may be required by statute or a code of ethics to make disclosure to a government agency.

4. Even where a lawyer refers a client to a nonlegal service provider for assistance in financial matters, the lawyer’s obligation to preserve and safeguard client funds in his or her possession continues.

5. You are under no obligation to use the services of the nonlegal service provider to whom you are referred and use of a particular nonlegal service provider is not a condition to continued representation by the lawyer who makes the referral.

You have the right to consult with an independent lawyer or other third party before signing this agreement.

Client’s Consent:

I have read the above Statement of Client’s Rights in Cooperative Business Arrangements and I consent to the referral of my particular matter in accordance with that Statement.

________________________

Client’s signature

________________________

Date

RULE 4-7.2 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

The following shall apply to any communication conveying information about a lawyer's or a law firm's services:

(a)  Required Information.

(1)  Name of Lawyer or Lawyer Referral Service.  All advertisements and written communications pursuant to these rules shall include the name of at least 1 lawyer or the lawyer referral service responsible for their content.

(2)  Location of Practice.  All advertisements and written communications provided for under these rules shall disclose, by city or town, 1 or more bona fide office locations of the lawyer or lawyers who will actually perform the services advertised.  If the office location is outside a city or town, the county in which the office is located must be disclosed.  A lawyer referral service shall disclose the geographic area in which the lawyer practices when a referral is made.  For the purposes of this rule, a bona fide office is defined as a physical location maintained by the lawyer or law firm where the lawyer or law firm reasonably expects to furnish legal services in a substantial way on a regular and continuing basis.  If an advertisement or written communication lists a telephone number in connection with a specified geographic area other than an area containing a bona fide office, appropriate qualifying language must appear in the advertisement.

(b)  Prohibited Statements and Information.

(1)  Statements About Legal Services.  A lawyer shall not make or permit to be made a false, misleading, deceptive, or unfair communication about the lawyer or the lawyer's services.  A communication violates this rule if it:

(A)  contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;

(B)  contains any reference to past successes or results obtained or is otherwise likely to create an unjustified expectation about results the lawyer can achieve except as allowed in the rule regulating information about a lawyer's services provided upon request;

(C)  states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;

(D)  compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or

(E)  contains a testimonial.

(2)  Misleading or Deceptive Factual Statements.  Any factual statement contained in any advertisement or written communication or any information furnished to a prospective client under this rule shall not:

(A)  be directly or impliedly false or misleading;

(B)  be potentially false or misleading; 

(C)  fail to disclose material information necessary to prevent the information supplied from being actually or potentially false or misleading; 

(D)  be unsubstantiated in fact; or

(E)  be unfair or deceptive.

(3)  Descriptive Statements.  A lawyer shall not make statements describing or characterizing the quality of the lawyer's services in advertisements and written communications; provided that this provision shall not apply to information furnished to a prospective client at that person's request or to information supplied to existing clients.

(4)  Prohibited Visual and Verbal Portrayals. Visual or verbal descriptions, depictions, or portrayals of persons, things, or events must be objectively relevant to the selection of an attorney and shall not be deceptive, misleading, or manipulative.

(5)  Advertising Areas of Practice.  A lawyer or law firm shall not advertise for legal employment in an area of practice in which the advertising lawyer or law firm does not currently practice law.

(c)  General Regulations Governing Content of Advertisements.

(1)  Use of Illustrations.  All illustrations used in advertisements shall present information that is directly related and objectively relevant to a viewer's possible need for legal services in a specific type of matter.  Such illustrations shall be still pictures or drawings and shall contain no features that are likely to deceive, mislead, or confuse the viewer.

(2)  Fields of Practice.  Every advertisement and written communication that indicates 1 or more areas of law in which the lawyer or law firm practices shall conform to the requirements of subdivision (c)(3) of this rule.

(3)  Communication of Fields of Practice.  A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.  A lawyer shall not state or imply that the lawyer is a specialist except that a lawyer who complies with the Florida certification plan as set forth in chapter 6, Rules Regulating The Florida Bar, or who is certified by an organization whose specialty certification program has been accredited by the American Bar Association may inform the public and other lawyers of the lawyer's certified areas of legal practice and may state in communications to the public that the lawyer is a "specialist in (area of certification)."

(4)  Disclosure of Liability For Expenses Other Than Fees.  Every advertisement and written communication that contains information about the lawyer's fee, including those that indicate no fee will be charged in the absence of a recovery, shall disclose whether the client will be liable for any expenses in addition to the fee.

(5)  Period for Which Advertised Fee Must be Honored.  A lawyer who advertises a specific fee or range of fees for a particular service shall honor the advertised fee or range of fees for at least 90 days unless the advertisement specifies a shorter period; provided that, for advertisements in the yellow pages of telephone directories or other media not published more frequently than annually, the advertised fee or range of fees shall be honored for no less than 1 year following publication.

(6)  Firm Name.  A lawyer shall not advertise services under a name that violates the provisions of rule 4-7.10.

(7)  Payment by Nonadvertising Lawyer.  No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm.  Rule 4-1.5(f)(4)(D) (regarding the division of contingency fees) is not affected by this provision even though the lawyer covered by rule 4-1.5(f)(4)(D)(ii) advertises.

(8)  Payment for Recommendations; Lawyer Referral Service Fees.  A lawyer shall 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 or written or recorded communication permitted by these rules, may pay the usual charges of a lawyer referral service or other legal service organization, and may purchase a law practice in accordance with rule 4-1.17.

(A) a lawyer or law firm may refer clients to a nonlegal professional or nonlegal professional service firm pursuant to a contractual relationship with such nonlegal professional or nonlegal professional service firm to provide legal and other professional services on a systematic and continuing basis as permitted elsewhere in these Rules Regulating The Florida Bar, provided that such referral shall not include any monetary or other tangible consideration for the referral or the sharing of legal fees and provided that the lawyer remains subject to all of the Rules Regulating The Florida Bar;

(B)  a lawyer may pay the reasonable cost of advertising or written or recorded communication permitted by these rules;

(C) a lawyer may pay the usual charges of a lawyer referral service or other legal service organization; or

(D) a lawyer may purchase a law practice in accordance with rule 4-1.17.

(9)  Language of Required Statements.  Any words or statements required by this subchapter to appear in an advertisement or direct mail communication must appear in the same language in which the advertisement appears.  If more than 1 language is used in an advertisement or direct mail communication, any words or statements required by this subchapter must appear in each language used in the advertisement or direct mail communication.

(10)  Permissible Content of Advertisements.  The following information in advertisements and written communications shall be presumed not to violate the provisions of subdivision (b)(1) of this rule:

(A)  subject to the requirements of this rule and rule 4-7.10, the name of the lawyer or law firm, a listing of lawyers associated with the firm, office locations and parking arrangements, disability accommodations, telephone numbers, Web site addresses, and electronic mail addresses, office and telephone service hours, and a designation such as "attorney" or "law firm";

(B)  date of admission to The Florida Bar and any other bars, current membership or positions held in The Florida Bar, its sections or committees, former membership or positions held in The Florida Bar, its sections or committees together with dates of membership, former positions of employment held in the legal profession together with dates the positions were held, years of experience practicing law, number of lawyers in the advertising law firm, and a listing of federal courts and jurisdictions other than Florida where the lawyer is licensed to practice;

(C)  technical and professional licenses granted by the state or other recognized licensing authorities and educational degrees received, including dates and institutions;

(D)  foreign language ability;

(E)  fields of law in which the lawyer practices, including official certification logos, subject to the requirements of subdivisions (c)(2) and (c)(3) of this rule;

(F)  prepaid or group legal service plans in which the lawyer participates;

(G)  acceptance of credit cards;

(H)  fee for initial consultation and fee schedule, subject to the requirements of subdivisions (c)(4) and (c)(5) of this rule;

(I)  a listing of the name and geographic location of a lawyer or law firm as a sponsor of a public service announcement or charitable, civic, or community program or event;

(J)  common salutary language such as "best wishes", "good luck", "happy holidays", or "pleased to announce"; and

(K) an illustration of the scales of justice not deceptively similar to official certification logos or The Florida Bar logo, a gavel, or traditional renditions of lady justice, or a photograph of the head and shoulders of the lawyer or lawyers who are members of or employed by the firm against a plain background consisting of a single solid color or a plain unadorned set of law books; and

(K) (L) a lawyer referral service may advertise its name, location, telephone number, the referral fee charged, its hours of operation, the process by which referrals are made, the areas of law in which referrals are offered, the geographic area in which the lawyers practice to whom those responding to the advertisement will be referred, and, if applicable, its nonprofit status, its status as a lawyer referral service approved by The Florida Bar, and the logo of its sponsoring bar association.

      Comment

This rule governs all communications about a lawyer's services, including advertising permitted by this subchapter.  Whatever means are used to make known a lawyer's services, statements about them must be truthful.  This precludes any material misrepresentation or misleading omission, such as where a lawyer states or implies certification or recognition as a specialist other than in accordance with this rule, where a lawyer implies that any court, tribunal, or other public body or official can be improperly influenced, or where a lawyer advertises a particular fee or a contingency fee without disclosing whether the client will also be liable for costs.  Another example of a misleading omission is an advertisement for a law firm that states that all the firm's lawyers are juris doctors but does not disclose that a juris doctorate is a law degree rather than a medical degree of some sort and that virtually any law firm in the United States can make the same claim.  Although this rule permits lawyers to list the jurisdictions and courts to which they are admitted, it also would be misleading for a lawyer who does not list other jurisdictions or courts to state that the lawyer is a member of The Florida Bar.  Standing by itself, that otherwise truthful statement implies falsely that the lawyer possesses a qualification not common to virtually all lawyers practicing in Florida.  The latter 2 examples of misleading omissions also are examples of unfair advertising.

Prohibited information

The prohibition in subdivision (b)(1)(B) of statements that may create "unjustified expectations" precludes 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 verdicts, and advertisements containing client endorsements or testimonials.  Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.

The prohibition in subdivision (b)(1)(D) of comparisons that cannot be factually substantiated would preclude a lawyer from representing that the lawyer or the lawyer's law firm is "the best," "one of the best," or "one of the most experienced" in a field of law.

The prohibition in subdivision (b)(1)(E) precludes endorsements or testimonials, whether from clients or anyone else, because they are inherently misleading to a person untrained in the law.  Potential clients are likely to infer from the testimonial that the lawyer will reach similar results in future cases.  Because the lawyer cannot directly make this assertion, the lawyer is not permitted to indirectly make that assertion through the use of testimonials.

Subdivision (b)(4) prohibits visual or verbal descriptions, depictions, or portrayals in any advertisement which create suspense, or contain exaggerations or appeals to the emotions, call for legal services, or create consumer problems through characterization and dialogue ending with the lawyer solving the problem.  Illustrations permitted under Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), are informational and not misleading, and are therefore permissible.  As an example, a drawing of a fist, to suggest the lawyer's ability to achieve results, would be barred.  Examples of permissible illustrations would include a graphic rendering of the scales of justice to indicate that the advertising attorney practices law, a picture of the lawyer, or a map of the office location.

Communication of fields of practice

This rule permits a lawyer or law firm to indicate areas of practice in communications about the lawyer's or law firm's services, such as in a telephone directory or other advertising, provided the advertising lawyer or law firm actually practices in those areas of law at the time the advertisement is disseminated.  If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted so to indicate.  However, no lawyer who is not certified by The Florida Bar or an organization having substantially the same standards may be described to the public as a "specialist" or as "specializing."

Paying others to recommend a lawyer

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 permitted 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 participate in lawyer referral programs and pay the usual fees charged by such programs, subject, however, to the limitations imposed by rule 4-7.11.  Subdivision (c)(8) does not prohibit paying regular compensation to an assistant, such as a secretary or advertising consultant, to prepare communications permitted by this rule.

RULE 4-7.10 FIRM NAMES AND LETTERHEAD

(a)  False, Misleading, or Deceptive.  A lawyer shall not use a firm name, letterhead, or other professional designation that violates subdivision (b)(1) of rule 4-7.2.

(b)  Trade Names.  A lawyer may practice under a trade name if the name is not deceptive and does not imply a connection with a government agency or with a public or charitable legal services organization, does not imply that the firm is something other than a private law firm, and is not otherwise in violation of subdivision (b)(1) of rule 4-7.2.  A lawyer in private practice may use the term "legal clinic" or "legal services" in conjunction with the lawyer's own name if the lawyer's practice is devoted to providing routine legal services for fees that are lower than the prevailing rate in the community for those services.  A lawyer or law firm may not include the name of a nonlawyer in its firm name, nor the name of a nonlegal professional or professional service firm with whom the lawyer or law firm has a contractual relationship with a nonlegal professional or nonlegal professional service firm as provided elsewhere in these Rules Regulating The Florida Bar.

(c)  Advertising Under Trade Name.  A lawyer shall not advertise under a trade or fictitious name, except that a lawyer who actually practices under a trade name as authorized by subdivision (b) may use that name in advertisements.  A lawyer who advertises under a trade or fictitious name shall be in violation of this rule unless the same name is the law firm name that appears on the lawyer's letterhead, business cards, office sign, and fee contracts, and appears with the lawyer's signature on pleadings and other legal documents.

(d)  Law Firm with Offices in More Than 1 Jurisdiction.  A law firm with offices in more than 1 jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

(e)  Name of Public Officer in Firm Name.  The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

(f)  Partnerships and Authorized Business Entities.  Lawyers may state or imply that they practice in a partnership or authorized business entity only when that is the fact.

        Comment