We at the Commission recognize that lawyers need to use all the tools of technology to best serve our clients and society. Although we encourage lawyers to embrace technological advances, we also want to make lawyers aware of certain professional and ethical boundaries. So how do we do this? Today we introduce a weekly series involving a fictional new lawyer, Ali.
Meet Ali Our NextGen Lawyer
Ali’s our NextGen lawyer. She grew up in Oak Park and studied business at University of Illinois. After spending a couple years in HR, Ali decides that she wants to know more about the elaborate corporate policies she enforces at work. At 25, Ali heads back to law school.
Ali attends the usual first year courses but she doesn’t find an area of law for which she’s truly passionate. All that changes when she wanders into a Title VII lunch presentation. Ali listens eagerly as the litigation speaker talks about her work for women firefighters and pregnant police officers. During that hour, Ali realizes what she wants to be – an employment lawyer.
Ali interns for two summers with a solo practitioner in Chicago. He promises to take Ali on as an associate when she graduates. Ali graduates, takes the bar exam and then the Friday before she is scheduled to begin work, Ali receives an email message from her future employer. It seems he’s run seriously afoul of some Illinois ethical rules and the ARDC has suspended his license for five years. No license, no practice. No practice, no job.
Ali doesn’t know what to do. Frantic, she desperately tries to find another job. No luck. So eventually she makes a decision that she hopes will help her pay off her massive law school debt. She’ll open up her very own employment law practice. Newly admitted to the bar, she’s excited, she’s nervous, and, given what happened with her former employer, she wants to make sure she doesn’t run afoul of any ethical rules.
Ethical and Professionalism Dilemmas
Ali will encounter a series of ethical and professionalism dilemmas that lawyers across the country face. We will provide her with advice from bar associations, courts, ethics committees. Most importantly, Ali wants advice from you.
So let’s begin.
(Unless otherwise specified, the ethical rules cited in other jurisdictions are substantively the same as the Illinois Rules of Professional Conduct)
Ali opens up her new law practice in her parents’ basement. She has no income and no clients. She’s ready to advertise. She decides to start with Google AdWords. Google AdWords is a pay-per-click model where Ali chooses certain keywords. When a user searches for the keywords Ali has chosen, an ad will pop up on Google’s search results. That ad will link to Ali’s website. Ali will then pay Google every time her ad is clicked on. Before she signs up, she wants to know whether this form of advertising is acceptable.
Generally, the ethical issue here is that lawyers may advertise their services but may not share fees with non-lawyers. A couple of opinions from Arizona and South Carolina offer some guidance.
The State Bar of Arizona, in Ethics Opinion 11-02, concluded that pay-per-click advertising, such as AdWords, constitutes “the reasonable costs of advertisements” under Arizona Ethical Rule 7.2(b)(1) rather than the impermissible fee sharing arrangement prohibited by Ethical Rule 5.4(a). According to the Bar, the fee is based on the number of prospective clients who receive the lawyer’s information from the Service. If hundreds of prospective clients in the lawyer’s zip code submitted a contact request, but none actually engaged the lawyer, the lawyer would pay the same as a lawyer who received the same number of requests but was hired by every prospective client. The pay-per-click arrangement therefore does not carry the risks to clients associated with impermissible referral fees.
The South Carolina Bar in Advisory Opinion 01-03 agreed with the Arizona Bar. It equated pay-per-click with television or newspaper ads that vary their advertising fees based on the size of the audience. “The fact that the technology available to an Internet service allows for a more precise measurement of its effectiveness, does not, in and of itself, make the method of payment impermissible.”
Ali’s excited – she signs up for Google AdWords. She chooses the following words: “employment lawyer”, “discrimination lawyer”, and “Chicago lawyer” and waits for the clients to come knocking on her virtual door. They do not. Ali needs a Plan B, or at least, needs to seriously revise Plan A.
What should Ali do now? We’ll see when we visit her next week. Meanwhile, feel free to give her some start-up advice in the comments.