A new day has dawned for legal services plans in Florida.

• Author: Schaefer, John

Every citizen of this state should have access to the legal system. A person's ability to gain such access is enhanced by the assistance of and representation by an attorney duly licensed to practice law in this state.... 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 (emphasis supplied).[1]

Upon the adoption of this language,[2] the Board of Governors expressly recognized and codified the Bar's longstanding public policy position that plans are an appropriate vehicle for increasing a person's ability to retain legal services in order to gain access to the legal system.

With the approval of Ch. 9, the board also expressly recognized that the "user-friendly" provisions of this rule would help implement this position by more easily permitting Florida attorneys to create and develop such Ch. 9 plans.

In light of the foregoing, it is the purpose of this article to provide a comprehensive review and practical analysis of Ch. 9 in order to encourage the private bar in Florida to consider the feasibility and practicality of incorporating the creation and operation of Ch. 9 plans into its practice.

Scope and Extent of Ch. 9 Jurisdiction

Because plans in Florida are regulated by either the board, by and through the Prepaid Legal Services Committee, by and under the authority provided in Ch. 9, or the Florida Department of Insurance, by and under the authority provided in ES. Ch. 642,[3] a managing attorney[4] must first determine whether a proposed plan will invoke the jurisdiction of Ch. 9.

In brief, Ch. 9 jurisdiction shall be invoked whenever a "legal services plan" meets the definition in Rule 91.3(e), which reads, in pertinent part: "an arrangement whereby a sponsor[5] contracts directly with a managing attorney for the provision of legal services to its members" (emphasis supplied).[6]

As such, it is of paramount importance for a managing attorney desiring to trigger the provisions of Ch. 9 first to contract directly with "an organization of 2 or more persons whose individual members are identifiable in terms of some common interest or affinity,"[7] and, then, fully and completely comply with the requirements set forth in Rule 9-2.

In essence, these requirements provide that a managing attorney shall not be permitted to operate a Ch. 9 plan in Florida without first obtaining approval by the board to establish such plan.[8] Further, a managing attorney seeking such board approval of a plan shall file with the committee a plan application.[9]

Form and Content of Plan Application

In general, Rule 9-2.2 provides that a plan application shall consist of five separate components.

First, Rule 9-2.2(a) provides that the managing attorney shall make certain assurances to the Bar, in writing, executed on a form approved and adopted by the committee.[10]

Of particular practical significance to a managing attorney is the assurance contained in Rule 9-2.2(a)(5). This provision clearly provides notice to the managing attorney that any proposed change to a plan previously approved by the board may not be implemented without first obtaining board approval. Therefore, in light of the fact that the committee convenes regularly scheduled meetings only three times during the year, it is certainly incumbent upon the managing attorney to fashion the written agreement described in Rule 9-2.2(b) to require little, if any, amendment. And, further, the managing attorney's crafting of the language of this agreement should, necessarily, be particularly acute with respect to the provisions relating to the legal services to be provided[11] or excluded[12] under the plan.

In addition, depending upon the nature and extent of the type of Ch. 9 plan contemplated to be offered to a prospective sponsor, a managing attorney may desire to consider the full effect of the assurance contained in Rule 9-2.2(a)(8).[13] In sum, if a managing attorney determines that the managing attorney, or said managing attorney in conjunction with specified members of the managing attorney's law firm, shall be the sole plan attorney(s)[14] under the plan, then, in consideration of each of said attorneys making the affirmative statement identical in nature to that required of all plan attorneys as described in Rule 9-2.2(c) (2), the written agreement described in Rule 92.2(c) shall be neither required to be prepared nor filed with the committee.

Second, Rule 9-2.2(b) clearly requires that the managing attorney and sponsor shall both execute a written agreement, as described.[15]

Although most, if not all, of the provisions required to be included in this written agreement are fairly standard in the creation of plans, a managing attorney should, nonetheless, be keenly aware that the agreement requires full and specific disclosure of the nature and extent of the fee arrangement, of whatsoever type or kind...