Building Business is Not the Business of the Florida Bar

Alan & Bill Wagner

Open Letter to Leaders and Members of The Florida Bar

Re: Protecting the Public and Profession, Not Profits

The Florida Bar should stop telling lawyers how to compete for more money from more clients. If the Bar won’t stop on its own, the Florida Supreme Court should instruct it to.

Under the Florida Constitution, the Florida Supreme Court has the authority to regulate the admission of attorneys to the practice of law, as well as the responsibility to discipline those lawyers who do not properly respect and apply their professional responsibility. The Florida Supreme Court created The Florida Bar to “inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.” Florida lawyers are required to be members of The Florida Bar. It is not a voluntary club we are asked to join or one that we can quit if we do not like what the Bar is doing. If you want to be a lawyer in Florida, you must join The Florida Bar and you must pay its dues.

The Florida Supreme Court did not give The Florida Bar authority to tell lawyers how to make more money from clients; however, The Florida Bar is increasingly dedicating more and more of its resources – and our dues – to the business of lawyering, instead of to the profession of lawyering. Unfortunately, the business of making money for lawyers, influencing from whom lawyers make money, how they capture markets of people who may or may not need a lawyer, and how lawyers convince people to pay for their services, are matters that are frequently at odds with advancing the public interest and the administration of justice. There is a conflict of interest between The Florida Bar’s apparent business goals and the rightful goals of the Florida Supreme Court. This conflict of interest is harmful to the public’s perception of lawyers, the law, the justice system, and the administration of justice. The Florida Bar should leave the business of lawyering to others and rededicate itself to the mission for which it was created by the Florida Supreme Court: the profession of lawyering.

In his outgoing message to members of The Florida Bar published in the June issue of The Florida Bar Journal, Bar President Abadin essentially calls on The Florida Bar to do whatever is possible to help lawyers make more money from citizens who want to live a lawful life but instead are being led to believe, by lawyers and businesses, that they either need legal help or will be in potential danger if they don’t seek (and pay for) legal help.

In The President’s Page, Mr. Abadin dwells on the “competitive challenges” faced by lawyers and on the resistance of “institutional clients to traditionally priced services.” Instead of considering options to make it easier for people to live without needing legal services, the article stresses that “the value of the market” for people who need but can’t afford legal services is estimated at $45 billion dollars. The Florida Bar President then proceeds to suggest how lawyers can capture that market. The article encourages changes to the professionalism rules to make it more profitable and easier for lawyers, and new forms of “legal innovators” run by non-lawyers, to capture “consumers” in “the marketplace.” Lawyers are asked to help The Florida Bar recommend to the Florida Supreme Court that it make “changes necessary to ensure our place in the new marketplace.” The public, though, will see and understand this as an effort by The Florida Bar to get the Court to change the rules of professional conduct so that more lawyers can make more money from more people.

There is nothing wrong with recognizing that “the business of delivery of legal services is in the grip of a transformation.” As President Abadin points out, there are more than 1000 non-lawyer owned companies providing some form of “legal service” to consumers in need of assistance. He specifically mentions Avvo, Legal Hero, and Rocket Lawyer as examples. What is absent is any suggestion that there are ways to regulate the services provided by these companies to protect the public when they provide services that do not require an actual lawyer. There is likewise no suggestion that The Florida Bar should consider ways for lawyers to develop business practices that make their services, if really needed, both professional and profitable. The article instead argues that we should join up with these new and innovative companies — and change our professional rules to allow lawyers to capture the “market” with them.

If The Florida Bar becomes just one more business that focuses on finding ways for its members to make more money from more consumers by new and confusing schemes to “capture” a market, the public perception of the law and of lawyers will suffer. The Florida Bar Journal itself proudly proclaims on the cover of each issue that it is “advancing the competence and public responsibility” of lawyers. The Florida Bar should not add “and maximizing the profits and market share of its members” to its moniker or its mission. That goal – and it is a worthy goal – should be left to voluntary organizations that already exist and to the marketplace itself, not to the Florida Supreme Court or to its representative agent, The Florida Bar.

To be clear, there is nothing wrong with lawyers making money, and nothing wrong with businesses trying to develop ways for lawyers to provide needed legal services and be paid for their work. That is capitalism at its finest. The question here is whether the Florida Supreme Court should require all lawyers – as a price of being a lawyer – to join a group with a stated goal of developing ways for its members to make money. Even more troubling is a situation in which some of those potential money-making means, while of benefit to some lawyers, would likely bring harm to other member-lawyers.

The “conflict of interest” threat is not limited to conflicts between lawyers and the interests of the public. Recently, the leadership of The Florida Bar proposed recommendations for rule changes that they claimed are needed because “the business of the delivery of legal services is in the grip of a transformation that cannot be stopped.” A closer look at the proposals by lawyer-members of The Florida Bar, and the complaints that followed, caused The Florida Bar to withdraw the proposal. The Florida Bar’s “money issue” proposals apparently remain a goal of leadership. Some of those proposals, while benefitting large, multistate firms with hugely wealthy clients, would be of no value to smaller local firms or lawyers in rural communities and could well threaten the practices of those lawyers and others. Pending proposals for economic fee-sharing with non-lawyer businesses advanced by leadership of The Florida Bar again appear to benefit one category of Florida lawyer to the detriment of other lawyers. The Florida Bar and the Florida Supreme Court should not be in a position of choosing which set of lawyers is worthy of being promoted and which is not.

The Florida Supreme Court should make it clear that the authority of The Florida Bar, as the arm of the Supreme Court, is to regulate the professionalism of lawyers, both by creation of rules limited to that issue, and enforcement of those rules where needed. Clearly, the certification of competency specialties, pro-bono legal services, public education programs, legal education programs and the like meet that goal. The “business getting,” “market capturing,” “profit maximizing” endeavors of The Florida Bar do not, and those endeavors should cease. If the Florida Supreme Court wishes to permit these activities, then The Florida Bar should conduct them only through a separate entity that lawyers can choose whether to join and support with their dollars, or ignore altogether. The business of lawyering should be left to private enterprise – not to the Florida Supreme Court and, by extension, to The Florida Bar.

One thing is certain: if The Florida Bar is going to become a business venture to maximize the profits of its members, then it may soon find itself under the scrutiny of, and regulation by, the Florida Legislature. The Florida Bar has stated that “periodically, a few legislators, public officials or special interest groups call for the regulation of the legal profession by an entity other than the Supreme Court of Florida.” This state has a fascinating and extensive history of legislative efforts to limit or modify the activities of The Florida Bar. Some efforts have been successful, with major changes resulting often by “compromise,” but sometimes through mandated legislation. It is in the best interest of lawyers, their clients, and the public to confront this issue without getting our divided legislature involved in the process. Continued efforts by The Florida Bar to adopt the President’s proposals, however, increase the risk that The Florida Bar, and perhaps the Florida Supreme Court, will be placed in the position of witnessing arguments about their future made and debated in the legislative arena.

The June issue of The Florida Bar Journal contained a stimulating article by Chief Justice LaBarga describing the efforts being made to educate Floridians about the justice system and to thereby improve their respect for the system and for the law itself. Justice Labarga’s theme was basically that no matter how well we function, it is what the public sees and understands about our system of justice that counts. In this changing world of communication, we must establish “goals designed to help us become better messengers to the people we serve and protect.” We must “let people know the good things we do” and even “acknowledge our own problems and demonstrate what we are doing to correct them.” That is an appropriate and worthy goal and mission statement for The Florida Bar.

Respectfully, The Florida Bar should abandon its current efforts to advance the “business,” “marketing,” and “profiting” of lawyering and instead focus on the professionalism of the law. That will best serve the public and the public perception of lawyers and the law, thereby serving the best interests of us all.

Bill Wagner

Alan Wagner

Wagner McLaughlin, P.A.

Tampa, Florida