WEST PALM BEACH (CN) – The Florida Bar is “restricting and thwarting the activities of for-profit lawyer referral services” without authority to do so, The Center For Legal Justice, a for-profit LLC, claims in Federal Court.
The Center claims: “Regulating private referral services raises both commercial free speech and separation of powers questions. Government can only regulate commercial speech that is misleading or proposes an illegal action, and then any regulation must be narrowly tailored to the legitimate interest the government has in that area. The separation of powers issue arises because, while the Supreme Court regulates the practice of law, it is not clear that the Supreme Court’s power extends to regulating private lawyer referral services. …
“Despite the fact that The Florida Bar says it does not regulate private lawyer referral services and has nowhere pointed to any authorizing Florida Supreme Court dictate allowing it to do so, Bar Rule 4-7.10 purports to impose quarterly reporting requirements on private lawyer referral services and a number of restrictions on the behavior of private lawyer referral services,” the Center claims in its 20-page complaint.
It sued The Florida Bar, seeking declaratory judgment, an injunction, costs and damages.
The Center for Legal Justice claims that in 2009 it registered as a for-profit Lawyer Referral Service (LRS), but in 2011, The Florida Bar revoked its registration.
According to the complaint: “There are two fundamental problems with The Bar’s action:
“a. First, The Bar based its decision on ‘confidential’ complaints, without confronting TCFLJ with the complaints or permitting TCFLJ the opportunity to be heard, before The Florida Bar ‘revoked’ the registration.
“b. Second, The Bar did provide sparse information on four of the supposed ‘complaints,’ which showed these were not complaints against TCFLJ at all.”
The Center claims that in the Bar’s Dec. 18, 2011 letter, “The Florida Bar cited three specific Rules as the authority for revoking TCFLJ’s registration: Rule 4-7.10 ‘Lawyer Referral Service’; Rule 4-7.4(a) ‘Direct Contact with Prospective Clients’ and Rule 4-8.4(a) ‘Misconduct.'”
The complaint continues:
“Given that TCFLJ is not and cannot be subject to any one of these Rules, none of them provides a basis for The Florida Bar’s action in revoking TCFLJ’s registration, even overlooking that The Bar had no facts to back up its conclusion.
“What does explain The Florida Bar’s action against TCFLJ is a publicly aired animus by the State of Florida Chief Financial Officer Jeff Atwater against for-profit LRS and his intent to ‘ban the [private, for-profit] services.’
“a. In other words, The Florida Bar has made a conscious decision to regulate where it has no authority to regulate, by targeting businesses it (and the State of Florida) views unfavorably, such as TCFLJ, for annihilation, all in blatant disregard of TCFLJ’s constitutionally protected commercial free speech rights and contractual relations.
“b. In fact, The Florida Bar News reported that the President of the Bar publicly announced his intention to rein in private referral services, in favor of nonprofit lawyer referral services administered by local bar associations. That is, The Florida Bar is promoting its own lawyer referral services at the expense of legitimate commercial services such as TCFLJ.
“c. The Florida Bar is pursuing this course of targeting for-profit lawyer referral services even though its Board of Governors member Grier Wells, who chairs the special LRS committee, has acknowledged that the Bar cannot regulate non-lawyers who own private for-profit referral services.” (Brackets and parentheses in complaint.)
The Center claims: “As the foregoing shows, The Florida Bar (and the committee) by design favors and promotes the Bar sponsored programs, which compete with for-profit services like TCFLJ while restricting and thwarting the activities of for-profit lawyer referral services.” (Parentheses in complaint.)
It claims The Florida Bar’s Lawyer Referral Service Rules and Regulations are unconstitutional: “No lawyer is really regulated by this Rule, only a for-profit non-lawyer business is regulated, a market that is supposed to be regulated, if at all, by legislative enactment, not by an organization whose constitutional mandate is quite restricted.
“What the Rule does is restrict the lawyer referral service’s and lawyer’s right of commercial association, right of contract, right of commercial free speech under the guise of some sort of disciplinary dictate.
“The rule permits The Bar, without oversight and without accountability, to arbitrarily and capriciously target private lawyer referral services and the lawyers associated with the LRS in order to drive the private, for-profit lawyer referral service out-of-business.
“The Bar’s bare ‘belief’ about private, for-profit lawyer referral services, manifested in the manner in which it has dealt with TCFLJ is not a basis to unconstitutionally do indirectly what it cannot do directly – prohibit commercial speech. …
“In revoking the registration, The Bar condemned TCFLJ’s use of the word Legal in its name, calling it an unlicensed practice of law issue. So, what had been acceptable for several years became unacceptable literally overnight.”
It adds: “The reason The Florida Bar revoked TCFLJ’s registration and took action against TCFLJ is a publicly stated desire on The Florida Bar’s part to ‘ban the [private, for-profit] services’ in favor of competitive non-profit services endorsed and actively supported by The Florida Bar. In other words, The Florida Bar has made a conscious decision to regulate where it has no authority to regulate, and to disregard TCFLJ’s commercial free speech rights and contractual relations. And, The Bar stares down ‘anyone [who] would dare file a lawsuit’ on this issue. …
“Revoking TCFLJ’s registration is just one example of how The Florida Bar is trying to circumvent its lack of authority by suggesting that it is really imposing a ‘regulation’ on lawyers who have no ability to do or not do any of the ten things that the Rule requires of a LRS.” (Brackets, but not ellipses, in complaint.)
The Center is represented by Richard Epstein with Greenspoon Marder in Ft. Lauderdale.