Scott and Fenderson Law Blog

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This site provides a resource for our clients, where we share our opinions on various legal topics, and include links to other articles,  blogs, and court cases, or reprint articles of interest which have appeared in other publications.  The law firm of Scott and Fenderson PA is located at 4755 Central Avenue, in St. Petersburg Florida. You may learn more about our firm by viewing our web site at www.scottandfenderson.com  We are Florida Lawyers serving clients needs in the areas of; personal injury, auto accidents, family law, divorce and estate planning.  Please note the posts other than reprints of previously published articles,  constitute the opinions of the authors and are not statements of fact. When possible articles and posts are footnoted or supported by links to other published materials, readers should view the links to other published materials and come to their own conclusions on topics discussed on this site. You should not rely on any information contained within this site when making legal decisions or handling legal matters.  This site does not constitute legal advice.  Always seek the advice of a lawyer before making any decision or taking any course of action on any legal matter. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide ask us to send you free written information on our qualifications and experience.

LAWYER REFERRAL SERVICES TARGETED

Lawyer referral services targeted

By MICHAEL SASSO | The Tampa Tribune

Published: May 26, 2012

TAMPA --

Now operating in Florida, Kentucky and Minnesota, the 1-800-Ask-Gary hotline may find its business model banned in its home state.

A Florida Bar committee proposes banning lawyers from joining services that also refer callers to nonlawyers, such as medical clinics. Under the rule, 1-800-Ask-Gary, 411 Pain and similar hotlines would have to choose whether to serve lawyers or medical providers, but not both.

That paints a bull's-eye on 1-800-Ask-Gary. For years, the company has referred clients to lawyers across Florida or to its affiliated chain of accident clinics, Physicians Group of Sarasota.

The question is whether the Bar's new rule would cripple 1-800-Ask-Gary and Physicians Group or whether they could find a way around it.

One critic of the hotline said he thinks they'll find a way.

"I'm sure they're not just going to go away," said Charles Scott, a St. Petersburg lawyer who battled 1-800-Ask-Gary in a lawsuit for the past two years. "I'm sure they'll find a way to deal with whatever the Bar throws at them."

A Florida Bar committee has been investigating legal referral services for months.

The committee didn't target any service specifically, but the growth of 1-800-Ask-Gary and 411 Pain has spooked some lawyers. Among their biggest concerns is the financial relationship among the lawyers, chiropractors and doctors who belong to them.

One concern is potential conflict of interest. Lawyers have shown up at medical clinics unsolicited to meet accident victims — apparently tipped off by a referral service, said Grier Wells, a Jacksonville lawyer chairing the Bar's committee

Other lawyers might face a legal quandary: Do they have an allegiance to the client or to a medical provider that's part of the accident hotline network?

"I don't mean to suggest that all lawyers or all referral services are guilty," Wells said. "But there's certainly enough of it to create a big problem."

The proposed new rule should eliminate some of those conflicts, he said.

The Bar cannot regulate referral services directly because it only has authority over the actions of lawyers. But it can prevent lawyers from participating in referral hotlines that serve lawyers and non-lawyers alike, Wells said.

That could force hotlines to choose.

The Florida Bar's full board of governors could vote on the rule in July. If the proposal passes, it would move on to the Florida Supreme Court.

The rule could hit Physicians Group hard because the clinic chain has relied on its deep contacts with lawyers to attract patients — relationships forged through 1-800-Ask-Gary.

Sarasota chiropractor Gary Kompothecras founded Physicians Group's predecessor company around a decade ago and now operates more than 40 clinics in Florida and others in Kentucky and Minnesota.

Kompothecras treated the 1-800-Ask-Gary hotline as his marketing arm and steered callers to Physicians Group for accident treatment and to dozens of lawyers for legal representation

Today, 1-800-Ask-Gary is separate from Physicians Group and owned by someone else, said Physicians Group's lawyer, Greg Zitani. 1-800-Ask-Gary still sends some accident victims to Physicians Group for treatment, he said.

Zitani said he doesn't see a conflict of interest because Physicians Group and 1-800-Ask-Gary are under different ownership. He plans to attend the Bar committee's next meeting in June but said he doesn't know how the new rule would affect the Ask Gary hotline or the clinic chain.

Scott, the St. Petersburg lawyer, was sued by 1-800-Ask-Gary when he posted blog items critical of the company in 2010.

Scott said the hotline might simply break itself into two pieces to get around the new rule. 1-800-Ask-Gary, for example, might refer callers to lawyers and a new 800-number might refer callers to doctors.

Gary Jodat, a local lawyer who gets referrals from 1-800-Ask-Gary, said the organizations provide an important service by encouraging accident victims to seek medical treatment for injuries.

While the Bar focuses on hotlines, Jodat said, he has a beef with insurance companies that try to get accident victims to sign settlements without seeing a lawyer.

"There's no restrictions at all on what insurance companies can do in that regard," Jodat said.

FLORIDA BAR - PROPOSES RULES ABOUT MEDICAL AND LEGAL REFERRAL SERVICES

 

From the Floirda Bar News June 1, 2012

Panel: Attorney referral services and medical providers should not mix

By Gary Blankenship, Senior Editor

Lawyers should not be able to join referral services that also refer callers for medical help or other non-legal professional services, according to the Special Committee on Lawyer Referral Services.

The committee voted unanimously to make that recommendation at its May 4 meeting, as it begins to put the finishing touches on a report that could go to the Bar Board of Governors in July. The committee is scheduled to meet again to possibly approve a final report during the Bar’s Annual Convention later this month.

The panel also voted to retain the requirement that lawyer referral services register with the Bar, but include restrictions that services should not claim such registration means they are "Bar approved."

The committee acted on the prohibition from joining a service that also does other professional referrals after getting an opinion from outside counsel Barry Richard that it would not violate the U.S. Constitution or restraint of trade laws.

If ultimately approved in rule form by the Bar Board of Governors and the Supreme Court, the committee’s action would mean, "A lawyer cannot accept a referral from any entity which also refers to other professionals for the same event," said committee Chair Grier Wells.

"If you take, for example, an automobile accident, a lawyer cannot accept a referral for that automobile accident if the referral source also refers [the caller] to other professional activities, such as a chiropractor or urologist or whatever," he added. "You can be involved in a referral service if the service is truly a lawyer referral service."

Committee members reiterated their earlier concerns about potential conflicts when a lawyer represents a client who has also been referred to medical treatment at a facility in which the referral service has a financial interest. That’s because when lawyers settle such a personal injury case, they are also expected to negotiate medical liens and bills incurred by their clients. In these cases, those charges would be owed to the entity that sent the lawyer the case and from which the lawyer would presumably hope to get more referrals.

During the committee discussion, member Alvin Alsobrook — a public member of the Board of Governors — asked attorney Tim Chinaris — who was present representing the medical/legal referral service 411-PAIN — what such a restriction would mean to his client.

"It’s hard to say," Chinaris replied. "I think what would happen is the service would make a decision whether to be medical or legal. Could the same owner own a medical and legal service at different phone numbers? You haven’t addressed that."

Committee members expressed two concerns about the requirement that lawyer referral services continue to register with the Bar, as required under current rules. (The Bar cannot directly require services that are not owned by lawyers to register, but it can prohibit lawyers from joining services that do not register with the Bar.)

One committee issue is that the group already is recommending that lawyers be required to report which referral services they belong to, so keeping the requirement for services to register would be redundant. The second committee concern is that some services use their registration with the Bar to claim in their advertisements that they are "Bar approved." But some committee members said it would be harder to keep track of services and their compliance with Bar rules — including having their ads reviewed by the Bar — without registration.

The committee’s final motion addressed whether referral services should continue to register with the Bar; pay a fee; keep disclosing the names of lawyers participating in the service; maintain their adherence to Bar rules; agree not to use that they are registered with the Bar in any advertising; and agree that they can be removed from the list of registered referral services if there is a successful complaint about their activities. The motion was approved by voice vote with two dissents.

The committee discussed, but did not take a vote on, other services such as LRS fees and proposing a joint legal-medical committee to look not only at referral services but at the relationships between doctors and lawyers as they refer clients and patients to each other.

Committee member Jay Cohen said he’s had complaints from lawyers who have had clients go to doctors for treatment and those doctors then urge the client to retain a different lawyer. Wells noted he’s heard stories of doctors and lawyers offering each other gift cards and trips in exchange for referrals.

"The concern we’re raising about this relationship . . . goes beyond the lawyer referral service," Cohen said.

The two recommendations approved at the May meeting will be added to the four made earlier this year by the special committee:

• Requiring a referral to a law firm be made to a specific attorney at that firm who would be responsible for seeing that the referral complies with Bar rules.

• Requiring attorneys who join referral services to register with the Bar. Currently, the Bar relies on referral services to turn over lists of their members, which in some cases has been problematic.

• Requiring that the initial contact to the lawyer be made by the client and not the referral service, medical clinic, or other third party. This was in response to testimony to the committee by some people who sought treatment from a medical clinic and were told they first had to hire an attorney and that clinic personnel or other nonlawyers had guided the patients in filling out the retainer forms.

• Improving public education about referral services and related issues.

PIP reform legislation full of errors, State Representative Richard Kriseman says

Tampa Bay Times - May 21, 2012

PIP reform legislation full of errors, State Representative Richard Kriseman says

The law that reforms the no-fault car insurance system doesn't go into effect for six more weeks, but that hasn't quieted down critics who say a technical error in the bill could create legal headaches for medical providers.

Rep. Rick Kriseman, D-St. Petersburg, is the latest to add his voice to the topic, penning a letter to Gov. Rick Scott pointing out the "numerous errors" in HB 119. Much of Kriseman's letter discusses a technical glitch in the bill's language that gives two separate dates for when certain provisions regarding medical clinics covered under PIP goes into effect.

Critics say the result of this glitch is that for six months, from July 1 to Dec. 31, many hospitals and medical clinics won't be legally able to submit claims under PIP. As a result, insurers could use the gap as justification to deny claims, they say.

The Agency for Health Care Administration issued a memo this month in hopes of clarifying the topic and reassuring both medical providers and policyholders. Meanwhile, insurers have said they will not use the technical glitch to their advantage.　

The PIP reform measures approved by the Legislature and signed into law by the governor are intended to reduce litigation and fraud and, hopefully, the cost of personal injury protection, which has driven up insurance rates. But many provisions of the law are untested and seemingly headed to the courts to clear up gray areas.

However Kriseman, an attorney, and others are already voicing concerns. In his letter, he asks Scott to provide clarity to insurance companies and medical providers about the law.

"As the majority of this legislation becomes effective in less than two months, your timely and prompt response to this inquiry would be greatly appreciated," he wrote

AHCA Letter about PIP reform:  http://miamiherald.typepad.com/files/ahca-letter-about-pip-reform.pdf

Rick Krisemans letter to Governor Scott: http://miamiherald.typepad.com/files/kriseman-letter-to-gov-scott-on-pip-reform.pdf

 

 

WANT TO BUY A CONDO IN FLORIDA, HERE ARE A COUPLE THINGS YOU SHOULD KNOW!

Guest Commentary by Tom Steck, Florida Realtor

This question seems to surface in homes north of the Mason-Dixon Line about the middle of February every winter, and although the answer at first would seem to be a simple "yes" or "well, maybe", there are some other questions you should consider.

First, of course, is can you afford a condo? (The word is short for "condominium", which comes from two Latin words: com- "together" + dominium "right of ownership", from Wikipedia.) If you have some assets that are available and are not committed to any purpose, then at least you have the option to consider buying a second home. (This would be a good time to talk to your accountant or tax preparer about your plans!)

If buying a condo means you have to do so with a mortgage, again, the tax implications need to be thoroughly investigated. Also, condo purchases in Florida generally require a down payment of anywhere from 20 to 30%.

There is a simple reason for this: in the past few years, numbers of speculators and investors bought condos using mortgages, and quite often "flipped" them. In other words, the speculators turned around and put the condos up for re-sale (sometimes even before they closed on the properties) at an increased price, many times before the unit was even completed if it was new construction.

Let's say that in past years, only 10% down was required to buy a condo. Mr. or Ms. Speculator has $100,000, uses the cash as a down payment on 10 different units costing $100,000 each, and "flips" each one for $120, 000 apiece. All of a sudden, there is $200,000 more sitting in the speculator's bank account. This little plan worked perfectly for several years, and was based on a sometimes unspoken assumption: that home values would continue going up like department store escalators.

Well, everything that goes up must come down, and unfortunately for the speculators, the housing industry didn't bother giving them advance notice of when that was going to occur. I personally know several folks who were in a situation similar to that described above when the bottom fell out of the housing market. Instead of those 10 condos being worth $120,000, they were valued at $80,000 (or worse, less than that figure). The speculators couldn't make the mortgage payments, (or went through what other savings they may have had), and the courts were flooded with bank foreclosures. In Florida, a foreclosure action requires a court order.

Now, let's say you already own a condo here, and your complex has 40 units. If speculators had "discovered" your complex and bought 10 or 15 units, now you plenty of parking space since there are a number of vacant units around you. The monthly maintenance fees are figured by taking the total cost of lawn work, painting, water, sewer, common building insurance, roof repair, etc. (all the costs usually included in a Florida condo's maintenance fees), and dividing that number by the number of units, and then by 12 (for the months in a year). If the speculators couldn't make the mortgage payments, they certainly couldn't care less about the maintenance fees, and since the banks haven't taken possession yet, the banks aren't responsible; who gets the bill? You, Mr. condo owner, re-divided amongst the unit owners who are still making mortgage payments. Since your monthly fees have now increased beyond what you had allotted, your unit is foreclosed upon, and so the snowball keeps rolling on.

Fortunately, this only happened in relatively few complexes in Florida, due to careful fiscal management by the various condo association officers, who are elected from amongst the unit owners (and under Florida law are subject to lawsuitsfor fiscal mismanagement).

As a result, since banks are now very wary of being caught with even more properties in their foreclosed inventories, they have decided to only "bet" on relatively sure things, like homeowners who can come up with a a 25 or 30% down payment.

Now that you're scared out of your wits, you decide there's no way you want to go through all these headaches. Then, you look out the window at your front lawn, covered with a blanket of softly-falling snow – "Honey, start packing; we're going to Florida!!"

Kathryn Larkin (727-709-0378) and Tom Steck (727-641-7771)

Century 21 Champions

4350 Duhme Road

Madeira Beach, Florida 33708

5 Reasons Not To Use Advance Settlement Funding

Imagine that you've been injured in an auto accident in Florida. You are out of work and bills are piling up, you've hired an attorney to help with your claim but things seem to be moving along so slowly and you need money now or else the electric company is going to shut your power off! You see a commercial for an advanced settlement funding company and call their 1-800 number and it seems like a miracle, they will send you money now!

Then your lawyer refuses to sign the papers from the advanced settlement funding company! You thought your lawyer was there to help you not hinder you from getting you the money you deserve after an accident. What's the deal with this lawyer who won't help??

Combine these difficult economic times with the ever growing length of the auto claims process and it is a recipe for many auto accident victims to suffer financial hardship while their case is pending. Sure there is PIP coverage available to pay for medical expenses, mileage, prescriptions and 60% of lost wages up to $10,000.00, but the PIP coverage does not pay for things like the electric bill while the injury victim is out of work and waiting for their auto insurance claim to resolve. The late night commercials for the advanced settlement funding companies do seem attractive, like the perfect solution - except remember what your Grandpa always said "If it seems too good to be true, then it probably is (too good to be true)"; this is a wise old warning that absolutely applies to advanced settlement funding loans. The devil is in the details, so they say, so it is extremely important to read the fine print, all 10 plus pages of it.

So why can't your lawyer help you through all this fine print? Because your lawyer probably thinks it's a bad idea and your lawyer has been warned by the Professional Ethics Opinions of the Florida Bar to advise you against these pre-settlement funding companies.

Below is the Florida Bar ethics opinion on pre-settlement funding companies.

PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 00-3

March 15, 2002

"An attorney may provide a client with information about companies that offer non-recourse advance funding and other financial assistance in exchange for an interest in the proceeds of the client's case if it is in the client's interests. The attorney may provide factual information about the case to the funding company with the informed consent of the client. Although the attorney may honor the client's valid written assignment of a portion of the recovery to the funding company, the attorney may not issue a letter of protection to the funding company." Note: This opinion was approved by The Florida Bar Board of Governors on March 15, 2002. (Emphasis added) CASES: The Florida Bar re Amendments to Rules Regulating The Florida Bar -- Rule 4-1.8(e), 635 So.2d 968 (Fla. 1994)

"The Committee has recently received numerous inquiries regarding various proposals to assist personal injury clients in obtaining non-recourse advance funding for the clients' personal expenses unrelated to the costs and attorneys' fees in the litigation pending recovery in their cases. The inquiring attorneys have received communications from funding companies offering to provide funds to personal injury clients in exchange for an assignment of part of the proceeds of the clients' cases. The attorneys specifically would like to know if they are permitted to provide the clients with information about the funding companies, provide information about the clients' cases to the funding companies, and provide the funding companies with letters of protection.

Whether a particular arrangement between the client and a funding company complies with applicable statutes is a legal question, outside the scope of an ethics opinion. The Committee therefore makes no comment on the legality of these transactions. See, e.g., Kraft v. Mason, 668 So.2d 679 (Fla. 1996). But see, Rancman v. Interim Settlement Funding Corp., 2001 WL 1339487 (Ohio 2001). If the transactions are illegal, an attorney must not participate in the transaction in any way. If a client requests information about or assistance with obtaining the funding, the attorney should advise the client about the illegal nature of the transaction and must not participate in or assist the client with the transaction. Rule 4-1.2(d). This opinion discusses appropriate conduct of attorneys regarding advance funding companies assuming that the transactions offered by the companies are legal. Nothing in the opinion should be viewed as endorsing advance funding companies or the use of advance funding companies in any way by The Florida Bar.

This Committee has previously indicated that attorneys cannot personally loan money to clients in connection with pending litigation. Florida Ethics Opinion 65-39. The Committee has also advised that an attorney may not indirectly loan funds to clients in connection with pending litigation through a nonprofit corporation funded by attorney contributions. Florida Ethics Opinion 68-15. Regarding loans from third parties to personal injury clients, this Committee has previously stated that "a lawyer may suggest to a client where the client may try to obtain financial help for individual needs. . ., but the lawyer should not become part of the loan process." Florida Ethics Opinion 75-24. The Committee stated that "[w]here the lawyer initiates the loan by recommending his client to the loan company, it seems to us that he is inherently representing to the loan company that the client's claim is meritorious." Id. The Committee cited to this opinion in Florida Ethics Opinion 92-6, which states that it is impermissible for an attorney to become involved in a financing agreement which required the attorney to become a trustee to benefit the company providing the loan to the attorney's client. The Committee additionally noted that "an attorney who routinely refers clients to a loan company and actively participates in the loan transactions would be providing financial assistance to those clients," albeit indirectly. Florida Ethics Opinion 92-6. When presented with the proposal at issue in opinion 92-6 in the form of a petition for a rule change, the Supreme Court of Florida stated that:

The Bar argues that the proposed amendment will result in inevitable conflicts of interest among lawyer, client, and lending institution, as well as discouraging settlements. We agree. . . . . We find that the rule amendment LRM proposes would violate both subsections of rule 4-1.8, thus creating possible conflicts of interest. This Court has disciplined members of the Bar for advancing funds or assisting others to do so. The Fla Bar v. Hastings, 523 So. 2d 571 (Fla. 1988); The Fla. Bar v. Wooten, 452 So 2d 547 (Fla. 1984); The Fla. Bar v. Dawson, 318 So. 2d 385 (Fla.), cert. denied, 423 U.S. 995, 96 S. Ct. 422, 46 L. Ed. 369 (1975). Lawyers should not be encouraged or allowed to do indirectly what they cannot do directly. The majority of states likewise prohibit this conduct. We therefore reject LRM's proposed rule amendment.

The Florida Bar re Amendments to Rules Regulating The Florida Bar -- Rule 4-1.8(e), 635 So.2d 968 (Fla. 1994). The Committee has not addressed whether an attorney could honor a letter of protection to a funding company, and has not elaborated on our advice in Opinion 75-24 as to the extent to which an attorney may "try to obtain financial help" for clients without becoming involved in the process of obtaining financial assistance. The Committee now undertakes to answer these questions.

The majority of states who have examined these issues have determined that it is permissible for an attorney to provide a client with information about funding companies. See, e.g., Arizona Ethics Opinion 91-22 (attorney may refer personal injury client to funding company, but may not reveal information to the company without the client's consent, may not co-sign or guarantee the transaction, and may not tell the company that the lien is valid and enforceable if in the attorney's opinion it is not); New York State Bar Association Opinion 666 (attorney may refer client to funding company which then takes a lien on the recovery, may provide information to the company only with informed consent of the client, but may not have an ownership interest in the company or receive any compensation from the company for the referral); Philadelphia Bar Association Opinion 91-9 (attorney may refer personal injury client to funding company which takes a lien on the recovery, but may not have an ownership interest in the company or receive any compensation from the company, must maintain independent professional judgment, and must have informed client consent to disclose information to the company); South Carolina Ethics Opinion 94-04 (if the transaction is not illegal, an attorney may tell a personal injury client about funding companies at the client's request or if it is in the client's interest, but should advise the client of the benefits and detriments of the transaction, should inform the client and company in writing that the client controls the litigation; the attorney may also pay the settlement proceeds to the company under a valid assignment); South Carolina Ethics Opinion 92-06 (an attorney may refer personal injury clients to a funding company and may honor the assignment of a portion of the claim to the company); South Carolina Ethics Opinion 91-15 (attorney may refer personal injury clients to a funding company in which the attorney has no interest, and may honor the assignment to the company as long as the client consents); Ohio Ethics Opinion 94-11 (attorney may not refer a client to a funding company which requires the attorney to give a percentage of the legal fee to the company, but may refer a client to a funding company if such an arrangement is not required, it is in the client's best interest, and the arrangement does not cause the attorney to violate the rules of professional conduct; the attorney should advise the client on alternative methods of obtaining assistance such as low interest credit cards, bank loans or personal loans from the client's family or friends); Virginia Ethics Opinion 115 (an attorney may request that a funding company provide a personal injury client with funding when other lending sources have declined to assist the client and may honor the company's lien on the recovery, but the attorney may not guarantee or co-sign the loan). The majority of states have concluded that providing information to a funding company at the client's request is permissible, with the informed consent of the client. They also conclude that an attorney may honor a client's assignment of a portion of the recovery to the funding company.

The Florida Bar discourages the use of non-recourse advance funding companies. The terms of the funding agreements offered to clients may not serve the client's best interests in many instances. The Committee continues to have concerns, as discussed in Opinion 92-6, of the problems that can arise when a client obtains financial assistance from a third party, such as the client's lack of incentive to cooperate. This Committee can conceive of only limited circumstances under which it would be in a client's best interests for an attorney to provide clients with information about funding companies that offer non-recourse advance funding or other financial assistance to clients in exchange for an assignment of an interest in the case. Under these limited circumstances an attorney may advise a client that such companies exist only if the attorney also discusses with the client whether the costs of the transaction outweigh the benefits of receiving the funds immediately and the other potential problems that can arise. Only after this discussion may a lawyer provide the names of advance funding companies to clients.

The attorney shall not recommend the client's matter to the funding company nor initiate contact with the funding company on a client's behalf. Florida Ethics Opinion 75-24. The attorney shall not co-sign or otherwise guarantee the financial transaction. Florida Ethics Opinion 70-8. The attorney also shall not allow the funding company to direct the litigation, interfere with the attorney-client relationship, or otherwise influence the attorney's independent professional judgment. The attorney shall not have any ownership interest in the funding company or receive any compensation or other value from the funding company in exchange for referring clients.

The attorney may provide information to a funding company about the case at the client's request. Before providing the company with such information, the attorney must advise the client about the effects of the disclosure, including whether any privileges such as attorney-client and work product may be waived if the information is disclosed to the funding company, and obtain the client's informed consent. Rule 4-1.6. If the client, after consultation, requests that the attorney provide the funding company with confidential information, the attorney is not obligated to provide work product material, such as the attorney's personal notes. However, the attorney may provide copies of documents such as medical records and accident reports if the client requests. The attorney is not obligated to bear the costs of copying the documents. Additionally, the attorney shall not provide the funding company with an opinion regarding the worth of the client's claim or the likelihood of success. Rule 4-1.7, Florida Ethics Opinion 75-24. Finally, the attorney may, at the client's request, honor a client's valid, written assignment of a portion of the recovery to the funding company. The attorney may not, however, provide a letter of protection to the funding company signed by the attorney.

In conclusion, an attorney may, under the circumstances set forth above, provide a client with information about companies that offer non-recourse advance funding and other financial assistance in exchange for an interest in the proceeds of the client's case. The attorney may provide factual information about the case to the funding company with the informed consent of the client. Although the attorney may honor the client's valid written assignment of a portion of the recovery to the funding company, the attorney may not issue a letter of protection to the funding company."

The Florida Bar Ethics Opinion 00-3 gives you some idea about why an attorney is extra cautious when dealing with advanced settlement funding companies.

If you are faced with financial hardship during your auto accident claim, the best thing to do is to talk to your attorney about your options; understand that your attorney has your best interests at heart but your attorney also has to make sure to follow this Florida Bar Ethics Opinion regarding advanced settlement funding companies. Your attorney will probably outline possible negative aspects of using advanced settlement funding companies to include, (but not limited to) the following possible adverse effects:

1. Exceptionally high interest rates or rates of return are often used by advanced settlement funding companies on the money loaned;

2. Depending upon the loan, the interest may accrue until the case resolves, some cases take years to resolve which could result in the interest exceeding the principal of the loan;

3. That the amount of the repayment of the loan depends upon the length of time it takes to settle or resolve the claim, it may add pressure on the injured victim to settle the case prematurely due to the increasing interest on the loan and the injury victim's desire to pay the loan;

4. The advanced settlement funding company may require information to process the loan that would require disclosure of attorney-client communications or attorney work product which could result in the waiver of attorney-client privilege or work product privilege;

5. The loan agreement from the advanced settlement funding company may give the funding company a legally enforceable lien or assignment against the recovery so that the attorney would have to honor the lien at the time of the closing of the case.

The bottom line for you? Advanced settlement funding loans are often too good to be true since the high interest rates far outweigh the benefit of the loan.

The bottom line for your attorney? An attorney may honor the client's valid written assignment of a portion of the recovery of a personal injury claim to the advanced settlement funding company; but the attorney may not issue a letter of protection (LOP) to the funding company or sign the agreement because the attorney would then become part of the loan process which is prohibited.

DISCLAIMER! Of course this is just our interpretation of the Ethics Opinion; if you have an attorney, please consult your own attorney for their advice on this topic. This article is not intended to state an opinion regarding any particular advance settlement company, rather only to inform the readers of possible ramifications of using advance settlement funding in general.

I hope that this gives you an idea of why attorneys generally discourage using advanced settlement funding companies.

　

Just Curious

Hello Blog Readers! 

Here's the scoop:  Charlie has been writing most of the blog posts lately and blog traffic is up which is fanatastic.

I'm curious, do you read this blog often?  Who are you? What would you like to see more of / less of on this blog?

I just returned from a lawyer conference and have lots of ideas for this blog but wanted to get some feedback before embarking. 

Please leave a comment with your thoughts and comments. Thanks!

Kathryn

 

Gov. Rick Scott Signs Law On No-Fault Car Insurance [fraud?]

NEW PIP LEGISLATION SIGNED INTO LAW FRIDAY

Gov. Rick Scott on Friday signed a law aimed at cutting down on what he called "an epidemic of car insurance fraud in Florida".  Re-writing Florida's PIP law was one of Gov.  Scott's priorities in the 2012 legislative session.  Gov. Scott said, "This legislation will benefit the pocketbooks of every Florida family who drives an automobile".

According to Gov. Scott, Florida's $10,000 PIP benefit has led to widespread abuse, staged car accidents and phony injuries that have sent insurance premiums skyrocketing to a level that many people can no longer afford.  It was alleged that the two biggest areas for fraud in the state are Tampa and Miami.

Under the new law, accident victims must be treated within 14 days, starting Jan. 1. Benefits will no longer pay for acupuncture and massage therapy, which state lawmakers decided were not medically necessary.

Most parts of the law take effect July 1, including stricter licensing of medical clinics, more use of long-form crash reports and stiffer penalties for providers who commit fraud. Judges can review attorneys' fees to ensure they are not excessive.

THE REAL INCENTIVE TO THE INSURANCE COMPANIES

Only people with emergency medical conditions can receive the full $10,000 PIP benefit. Others will be eligible for $2,500 in treatment, which is designed to cut down on the range of treatments victims receive.

Gov. Scott called PIP fraud a "billion-dollar tax" on Florida motorists. He and Chief Financial Officer Jeff Atwater aggressively pushed for passage of an anti-fraud measure but the bill sponsored by Rep. Jim Boyd, R-Bradenton, almost didn't happen. It narrowly passed the Senate on a 22-17 vote.

WILL THIS NEW BILL SAVE CONSUMERS MONEY?

It is uncertain whether the new PIP bill will save consumers any money. I checked out my insurance bill and my PIP insurance portion costs me about $363 per year per for PIP.  If I experience a premium savings of 10% as promised in the new law, I will save $36 per year.  In exchange for this savings I potentially give up $7500 in PIP benefits after an automobile accident. This math simply does not add up to a savings for me, but would be a huge benefit to the insurance companies.

The logic behind the bill was that accident victims can turn to their health insurance (if they have it) or to the at fault drivers liability insurance (if he or she has it). Unfortunately what the legislature failed to acknowledge is that Florida, unlike other states does not require drivers to carry mandatory liability coverage also known as BI (Bodily Injury Liability Coverage).  Cutting out 75% of PIP benefits with the expectation that injured drivers can collect from other sources makes no sense unless the legislature had added a requirement that drivers carry mandatory BI coverage. At the present time, drivers are only required to carry PIP (personal injury protection) and PD (Property Damage) which covers damage to the other car only, not injury to persons. Mandatory BI was proposed during the discussion of the new PIP law, but the legislature voted against mandatory BI. 

WHY DID WE HAVE PIP IN THE FIRST PLACE?

It is possible that the Florida Legislature lost sight of the reason we have PIP?  The personal injury protection (PIP) law was adopted in 1972 to make sure anyone injured in an auto accident would quickly get money to treat their injuries. The legislation provided that a driver’s insurance company pay up to $10,000 to cover medical bills and lost wages after an accident, no matter who is at fault.

The public policy in support of having PIP is expressed in Florida Statute Section 627.737 Tort exemption; limitation on right to damages. The intent was to limit injury lawsuits in Florida to the extent of personal injury protection benefits paid. The statute reads as follows:

627.737 Tort exemption: "Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, and every person or organization legally responsible for her or his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by ss. 627.730-627.7405, under any insurance policy or other method of security complying with the requirements of s. 627.733, or by an owner personally liable under s. 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2)."

The need for this exemption, and the PIP statute is based upon the fact that Florida does not require mandatory bodily injury liability insurance. Florida is a No Fault State. Everyone with auto insurance (not including motorcycle policies) is required to carry PIP (Personal Injury Protection). It typically covers 80% of your medical bills and 60% of your lost wages up to $10,000.00. You can buy medical payments coverage to fill in the 20% gap and you can also buy extended PIP coverage. If you want to save money, you can get wage exclusions on the PIP or a PIP deductible.

FLORIDA DOES NOT REQUIRE DRIVERS TO CARRY LIABILITY INSURANCE

What most people aren't aware of is that BI (bodily injury) coverage is not mandatory in Florida so someone can hit you with "full coverage" and be without BI coverage. Mandatory BI coverage is required in many states, but not in Florida. So "full coverage" equals PIP and Property Damage.

A much needed amendment to the new 2012 PIP bill was proposed during this session that would have added mandatory BI (bodily injury coverage) in Florida, however that amendment was shot down. The insurance company lobby prevailed again, as they would prefer not to have mandatory BI coverage in this state, and now have successfully limited PIP coverage with the new bill passed last Friday evening. Perhaps the legislature has lost sight of the needs of the people of Florida, as well as the intent of the PIP staute, and corresponding limitation of liability, and handed the insurance industry a nice gift for 2012 at the expense of the citizens of this state.

So I say, let the PIP fraud games begin. Already some PIP clinics may be looking for ways to circumvent the new PIP law recently passed in the Florida Legislature. One way that might seem like a good idea is to have a physician, osteopathic physician,  a supervised physician's assistant or advanced registered nurse practitioner on staff at your PIP accident clinic. That way, one of these licensed professionals can make the determination that an emergency medical condition exists with an auto accident victim, and as such the PIP clinic will be entitled to the entire $10,000.00 in PIP benefits. While this may seem enticing to some, it could be opening the door to allegations of PIP fraud if the majority of people that appear at a particular PIP clinic all have an "emergency medical condition" as determined by a staff person at the clinic.

I for one foresee a great deal of litigation over the new PIP law, and a great opportunity for the insurance companies to make more money, pay less benefits, and flat out deny benefits to Florida drivers.

If this bill saves consumers even the promised 10% off their PIP bill I would be quite surprised.My guess is that the insurance companies will inform Tallahassee that they were not able to cut rates as promised, but thanks for the legislation anyway.

visit Scott and Fenderson at Scott and Fenderson PA

Domestic Partners Rights Versus The Bible

There have been several news stories recently about major cities such as Tampa, Florida creating domestic partner registries. This is a good start to assist domestic partners in creating certain basic rights that would normally be afforded to married couples. For more on the new domestic partner registry, check out those articles in the archives on this blog.

In addition to registering as domestic partners, there are several legal documents that may further create certain legal rights between domestic partners. These include; a will, a living will, a durable power of attorney, and a health care power of attorney. These basic documents are not limited to domestic partners and serve anyone well to have these documents created and signed. These are traditionally estate planning documents, however they serve the needs of domestic partners by designating each other as having the right to inherit property, to make financial decisions when the other is unable to do so, and to make medical decisions when the other is unable to do so. 

On the issue of domestic partners, there has been a long standing debate on whether homosexuality was condemned in the bible.  There is an interesting and fairly long essay on the subject on  youtube, about an hour long, but it takes a scholarly look at the issue, dissecting the arguments that have been made in the name of religion over the years. I do not endorse this video, nor do I agree with it,  it apparently shows what religious scholars like to use as arguments against same sex relationships.

 

for more information on documents that may benefit domestic partners, call for a free consultation, 727-321-0099 or visit www.scottandfenderson.com

John Goodman DUI Manslaughter Trial Update

On March 23, 2012 Wellington Polo Millionaire John Goodman was convicted by a jury of DUI Manslaughter, a first degree felony.

 

John Goodman, 48, is facing a potential 30 years in prison at sentencing which was scheduled for this week.

However, the judge presiding over the case is under siege by a barrage of defense motions.

A jury convicted Goodman, 48, of the first-degree felony on March 23 after less than six hours of deliberations, finding Goodman was intoxicated when his Bentley smashed into a car driven by Scott Wilson, 23, in February 2010, flipping Wilson's car into a canal and drowning him.

Goodman's sentencing, in which he faces up to 30 years in prison, was initially set for Monday afternoon.

It now appears that sentencing won't take place any time soon – as an increasingly complex legal battle unfolds. Meanwhile, Goodman remains in the Palm Beach County Jail without bail.

Since the swift conviction, Goodman's defense team – including Miami attorney Roy Black – has filed a series of motions citing fatal flaws in the proceedings.

The defense wanted a new trial, to have Goodman released on bond while he appeals, to question jurors about alleged misconduct and, in the latest legal maneuver, to have the judge step down because of alleged bias against the defendant.

Lets wait and see what comes next!

TAMPA BAY BUSINESS JOURNAL COMMENTS ON 800-ASK-GARY GRIPE SITE

TAMPA BAY BUSINESS JOURNAL

Friday, October 15, 2010

1-800-Ask-Gary gripe site spawns complaint

An arbitrator recently paved the way for disgruntled 1-800-Ask-Gary customers to voice opinions online by allowing a Pinellas Park lawyer to keep the domain name askgarysucks.com. It has become an active Internet gripe site and a sounding board for comments regarding the lawyer referral service founded by Sarasota chiropractor Gary Kompothecras, who last June paid a little more than $1 million for a three-year deal to put his service’s name on the amphitheater in Tampa. The dispute between Kompothecras and David Neville, a personal injury lawyer, reflects the potential problems businesses can encounter with gripe sites and domain names. Neville was approached by the lawyer referral service about joining it several years ago. He has certain opinions about the service and declined.

“The domain name is my opinion,” Neville said. “The name sat there four or five years. I didn’t put any content up until after I was awarded the name in arbitration. It is not unfair, and nothing on the site links to my law office.” An arbitrator for the Internet Corporation for Assigned Names and Numbers, a nonprofit that promotes competition on the Internet and develops policies on identifiers, last month declined Kompothecras’ request to transfer to him the askgarysucks domain name. Kompothecras complained that the domain name was confusingly similar to his referral service’s trademark. The arbitrator did not agree, concluding that a reasonable person would not be confused about the Ask Gary trademark if it was appended by “sucks.”

The arbitrator also decided that promotion of the referral service through advertising campaigns, including the concert venue’s name, and publicity about class-action litigation involving lawyers in the referral service created “fertile ground for the generation of a protest site to develop.” Nicole Deese Newlon, a lawyer at Shutts & Bowen who represented Kompothecras, could not be reached for comment.

MOTIVATIONS MATTER

The mere act of registering a domain name means little, said Todd Timmerman, an intellectual property lawyer at Shumaker Loop & Kendrick in Tampa who was not involved in the dispute. What is done with the domain name and whether or not it involves “bad faith” registration are what can cause problems. “People have a free right to gripe as long as there is no commercial element,” Timmerman said. “It there is a commercial element to a gripe site, or it involves a competitor trying to damage a business, that may be deemed commercial activity. That could swing a decision by an arbitrator.”  He has handled domain name arbitration cases for clients, which can cost a business around $5,000 or “multiples of that” if the dispute becomes aggressive.

Many gripe sites and domain names using the word sucks exist on the Internet, and some involve protests about huge corporations. The key is for businesses to get out ahead of problems that cause people to register protest domain names, said Chris Karlo, a partner at Mercury New Media in Tampa. “Gripe sites are not uncommon and have been around for decades,” he said. “When you start talking about ‘sucks’ and gripe sites, it comes back to businesses not causing people to put up those sites. They’ve been provoked or they feel wronged. People don’t randomly attack businesses.” Karlo recommended businesses use reputation monitoring programs, which quickly identify customer service problems. “Some monitoring is free, and some companies have sophisticated software and a monitoring team,” he said. “You need to be proactive and use the tools available to keep a pulse on it.”

jmeinhardt@bizjournals.com | 727.224.2299
Read more: 1-800-Ask-Gary gripe site spawns complaint - Tampa Bay Business Journal