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Florida Bar Proposal for Online Legal Providers a Lighter Touch

Sept. 26, 2019, 6:33 PM

The Florida Bar is proposing voluntary registration for online legal services providers to boost consumer access to the legal system.

It would allow web-based services to register with the bar to provide legal forms to consumers for matters ranging from obtaining a will to registering a new company. The forms would need to be approved by the Florida Supreme Court, or at least a licensed Florida attorney.

The proposal is limited compared with potentially game-changing propositions in California, Utah, and Arizona, which could more directly open their legal systems to tech companies and other non-lawyers.

That’s by design, said Florida Bar President John Stewart. “We view this as a light touch” way to use the bar’s regulations to try to increase access to legal services—while simultaneously protecting consumers from bad actors. “It’s a good way to get started,” he said.

Access to justice proponents refer to repeated studies showing that American citizens facing legal matters ranging from landlord-tenant disputes to child custody cases are representing themselves in court in anywhere from 50% to 99% of the time because they cannot afford lawyers. Consumer-facing legal tech companies could do much more to bridge the gap if state bars allowed it, they add.

Mixed Reactions

The proposal, which passed the bar unanimously and now awaits action before Florida Supreme Court, benefits companies by providing them with an imprimatur they can tout to customers, said Stewart.

“It’s a differentiator,” he said, which also gives vendors assurance that they’re acting fully within the law as authorized service providers.

Observers had mixed reactions. Some found it bolstered accusations that the organization has tried to use its regulations to stifle legal service apps and other tech companies from offering their services in order to reduce competition to its roughly 107,000 members.

“It will be very costly to contract with a Florida attorney to evaluate all the combinations and permutations that an interactive form generates and thus will constrain innovation,” said Richard Granat, a Florida-based online legal services consultant and former co-chair of the ABA Law Practice Management Division’s E-Lawyering Task Force. “In my view this an attempt by the Florida Bar to curtail competition.”

Others said the bar deserved praise for advancing the ball, even if its proposal was modest compared with others.

“Florida is moving in a helpful direction with this proposal. Rather than claiming that online legal services providers are engaged in the unauthorized practice of law, the proposal appropriately recognizes that these providers are helping to address the public’s unmet legal needs,” said Andrew Perlman, dean of Suffolk Law School in Boston. He served as the inaugural chair of the governing council of the ABA’s Center for Innovation.

“At the same time, the proposal also recognizes that some modest, voluntary oversight of these providers can provide some useful public protections,” Perlman said.

The U.K. Example

The Florida Bar has been embroiled in litigation for the past couple years against legal tech startup TIKD, an app that charges users to find attorneys who will fight their traffic tickets. Though TIKD’s federal antitrust claims were dismissed last year, a state case is pending before the Florida Supreme Court.

Stewart, who said he couldn’t comment on the TIKD case because it’s ongoing, took issue with the notion that the active western state proposals would have a greater impact on access to legal services than the Florida effort.

Those states’ plans to loosen or scrap bar regulations like Rule 5.4—which could open law firms and other legal operations to non-lawyer co-ownership—have been “a selling point in the access to justice debate,” Stewart said. “But there’s no correlation” between loosing the rule and increased legal access, he said.

Yet backers of a more aggressive stance toward the access to justice crisis—who include leaders of legal aid group and tech companies, as well as conservatives like U.S. Supreme Court Justice Neil Gorsuch—point to the example of Britain. That country changed its laws in 2007 to allow for non-lawyer investment in law firms and other types of legal entities called alternative business structures.

In 2014, the Solicitors Regulation Authority found that while alternative business structures made up less than 3% of all law firms in England and Wales, they were handling one in five consumer and mental health cases, and a third of personal injury market.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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