Chapter 9 Legal Services Plans: An Opportunity for Florida Attorneys to Deliver Legal Services to Floridians in the Post-COVID-19 World.

• Author: Schaefer, John

At the outset, although it is now some 50 years since the Florida Supreme Court first created a rule (1) permitting the operation of legal services plans in the state of Florida, this writer would opine that Florida attorneys in private practice have generally been unaware of the existence of Chapter 9 Legal Services Plans, and the benefits resulting therefrom, as a means to expand their overall private client base.

As Florida begins to emerge from the COVID-19 pandemic during 2021, there has never been a better time for Florida attorneys to duly consider the creation of a Chapter 9 plan in order to provide Floridians with the opportunity to better gain access to the legal system.

This article introduces the concept of Chapter 9 plans; provide an overview of Chapter 9 plan regulation in Florida; highlight the benefits of becoming a Chapter 9 plan managing attorney; detail how to successfully complete the "2012 Committee Forms"; and, identify and discuss issues of import for a prospective managing attorney to consider prior to crafting a Chapter 9 plan.

Introduction to Chapter 9 Plans

Simply, a Chapter 9 plan is a legal services plan (2) governed by and under the rules and regulations of Chapter 9. (3) Upon passage of Chapter 9, as amended, effective April 3, 1998, The Florida Bar Board of Governors expressly codified the longstanding public policy position of The Florida Bar in support of the concept of plans upon adopting Rule 9-1.2, which provides, in relevant part:

Every citizen of this state should have access to the legal system....To this end, it is the policy of The Florida Bar to support the concept and to actively encourage the establishment, operation, growth, and development of legal services plans as [one] means of increasing a person's ability to obtain legal services at an affordable cost in order to have the opportunity to better gain access to the legal system.

Finally, the Prepaid Legal Services Committee (4) is the body expressly entrusted with the responsibility to ensure that plans submitted by members in good standing of the Bar are in full and complete compliance with the rules and regulations of Chapter 9. (5)

Chapter 9 Plan Regulation

In general, the requirements to establish a Chapter 9 plan are described in Rule 9-2. Rule 9-2.1 provides that a managing attorney shall not be permitted to operate a Chapter 9 plan in Florida without first obtaining approval by the board. Rule 9-2.1 further provides that a managing attorney seeking such approval of a Chapter 9 plan must file with the Prepaid Legal Services Committee a plan application pursuant to the requirements of Chapter 9. Rule 9-2.2 provides that a plan application must consist of five items, as follows: assurances by the managing attorney to the Bar (6); agreement by and between managing attorney and sponsor(7); agreement by and between managing attorney and plan attorney" (8); other documents (9); and the application fee in the amount of $125. (10)

* Committee Review of Plan Application--Rule 9-2.3 provides the plan application described in Rule 9-2.2 must be reviewed by both staff of the Bar and a Plan Review Subcommittee of the Prepaid Legal Services Committee. Upon the conclusion of the review, the Plan Review Subcommittee shall provide a report of its findings to the committee. The committee, in its discretion, may 1) approve the plan application (11); 2) approve the plan application conditionally upon requiring the managing attorney to file requested additional or corrective information (12); 3) require the managing attorney to file requested additional or corrective information so that the committee may further review the plan application (13); or 4) disapprove the plan application. (14)

* Board of Governors Approval of Plan Application--Rule 9-2.4 provides the committee shall request the board to place the committee's recommendation for approval of a plan on the agenda of a regularly scheduled meeting of the board. The board, in its discretion, may either approve or disapprove the establishment of the plan. Thereupon, the committee, by and through staff of the Bar, shall advise the managing attorney of the board's action.

In general, the requirements for the annual renewal of Chapter 9 plans are contained in Rule 9-2.5, which includes a renewal fee in the amount of $25. (15) Rule 9-2.6 (16) provides that the board may revoke any and all prior approval of a plan if the subject Chapter 9 plan does not comply with any rule or regulation within the Rules Regulating The Florida Bar.

Benefits of Becoming a Chapter 9 Plan Managing Attorney

Upon approval by the board permitting a managing attorney to operate a Chapter 9 plan in Florida, the managing attorney has the opportunity to create, in effect, a "Chapter 9 Plan Built-In" private client base consisting of the plan participants of the sponsor. In addition, if the managing attorney adopts an economic model based upon a per capita payment arrangement, then the managing attorney has the potential to receive recurring monthly income in the nature of a retainer.

A managing attorney has the potential, as well, to generate income in addition to the income derived directly from a Chapter 9 plan in the following ways:

* Upon the rendering of legal services to plan participants on legal matters not covered by and under the Chapter 9 plan, such legal services may be billed at the managing attorney's normal and customary rates.

* Upon a plan participant referring a member of the sponsor eligible to receive legal services under the Chapter 9 plan to so join the plan and become a plan...