New York Bar on ethically using online legal marketing services

The internet has changed our lives, for better or for worse. It's become an integral part of our culture, affecting the way we receive information, shop for goods and services, and interact with our peers and colleagues. Because so many people spend so much time online, the internet offers businesses a vast array of methods for reaching target audiences in an affordable and efficient manner. It is, however, a relatively new frontier and one that is changing all the time. For that reason it poses challenges for people seeking to market their services online who are part of a highly regulated profession, like lawyers. That's why over the past decade, ethics committees across the country have often grappled with the thorny ethical issues presented when lawyers seek to market their services online. One of the most recent opinions issued by the New York State Bar Association's Committee on Professional ethics is the latest in a long line of opinions from New York and other jurisdictions that address many of the issues lawyers face when marketing their services using the internet. At issue in Op. 1131 (online: http://www.nysba.org/ethics opinion1131/) is whether and under what circumstances a lawyer may pay a for-profit company (Service) for leads obtained online. The committee explained that it was opining on the general issue of whether a lawyer may pay an online lawyer matching service a monthly fee or a fee for each referred potential client and that its conclusion was not intended to cover every factual permeation that may exist in regard to referral websites of this type. At the outset, the committee concluded that the Service's website is an advertisement since it was "a communication 'on behalf of' a lawyer 'about' the lawyer's services for the 'primary purpose' of retention of the lawyer.'" As such, it was required to comply with Rule 7.1(h), which provides that "[a]ll advertisements shall include the name, principal law office and telephone number of the lawyer or law firm whose services are being offered." According to the committee, compliance with this rule could be achieved "by providing a link to either (i) a list of all participating attorneys with the required contact information or (ii) a list of all participating attorneys who fall within the geographic and practice area parameters that may be set by the potential client, along with the required contact information." Next the committee turned the functionality of the Service's website and whether it passed ethical muster. The committee concluded that the Service could avoid ethical pitfalls related to referral fees and solicitation issues by implementing certain necessary procedures. Specifically it would be ethical for a lawyer to participate in a marketing scheme of this type as long as "(i) the lawyer who contacts the potential client has been selected by transparent and mechanical methods that do not purport to be based on an analysis of the potential client's legal problem or the qualifications of the selected lawyer to handle that problemâ?¦(and) (ii) the service does not explicitly or implicitly recommend any lawyerâ?¦" Finally, the committee concluded that if the potential client matched to a lawyer consented to a phone call, the lawyer could call that individual without triggering any solicitation issues. Although this opinion does not apply to a specific online service, the general principles set forth in it provide helpful guidance to New York lawyers seeking to take advantage of online lawyer matching websites. Also useful is the accompanying opinion (which I wrote about a few weeks ago), Op. 1132 (online: http://www.nysba.org/ethicsopinion1132), which provides additional information for lawyers seeking to market their services online using Avvo and similar services. The bottom line is that it is possible for lawyers to ethically market their services online using third-party websites. The trick is to fully understand how each service works, so that you can assess your ethical obligations in light of the guidance handed down thus far. ----- Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book "Cloud Computing for Lawyers," coauthors the ABA book "Social Media for Lawyers: the Next Frontier," and co-authors "Criminal Law in New York," a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@ mycase.com. Published: Fri, Sep 22, 2017