Let’s return to Ali, our new attorney embarking on her solo practice career. Ali, as you may recall, is doing all the things recommended by new business gurus – find your niche market, set up a website, and get some search terms to direct you there. Ali signed up for Google AdWords and excitedly waited for clients. Unfortunately, Ali’s terms were a little too generic so she decides to tweak them some more. She wants to market her services directly to women, so she adds terms like “pregnancy discrimination”, “equal pay” and “unpaid leave”. She puts those out there and waits to see what happens.
Still nothing. Ali needs a Plan B. Here we go.
Ali searches around on the Internet and finds a company offering to list her name on a website. The website user enters his or her zip code. The website provides the user with the name of an attorney in the zip code. Ali will pay the website for the exclusive right to be the employment attorney listed in the zip code. Ali wants to know whether this is ethically permissible.
Hmmmm. Instead of a pay-per-click advertising model, this is a pay-per-lead advertising model. The State Bar of Arizona considered this situation and held that attorneys can participate in this form of advertising. According to Ethics Opinion 11-02, “A lawyer may ethically participate in an Internet-based group advertising program that limits participation to a single lawyer for each ZIP code from which prospective clients may come, provided that the service fully and accurately discloses its advertising nature and, specifically, that each lawyer has paid to be the sole lawyer listed in a particular ZIP code.”
In arriving at this conclusion, the Bar determined that a website similar to the one Ali found was not a lawyer referral service. Comment 6 to Arizona Ethical Rule 7.2 defines a lawyer referral service as any organization that either (1) holds itself out to the public as a referral service, or (2) allocates requests for lawyer services to a particular lawyer or lawyers. (In Illinois, only (1) constitutes a referral service). The Arizona Bar concluded that the website did not hold itself out as a referral service. Instead, it specifically stated that it was an advertising venue and made no recommendation regarding the listed lawyers. The Arizona Bar also concluded that the website was not allocating requests, any more than say, the Yellow Pages would. Therefore the website was advertising rather than referring and did not run afoul of Ethical Rule 7.2.
A New Jersey ethics opinion also looked into this issue. Although it concluded that the website was not an impermissible referral service, it did find the website misleading and in violation of Rule of Professional Conduct 7.1(a) because, among other reasons, it did not disclose the attorney selection process, did not list all participating attorneys, and did not explain that attorneys paid a fee to participate. New Jersey Supreme Court Committee on Attorney Advising Opinion 43.
Finally, the 2012 Revised Comment 5 to ABA Model Rule 7.2 now explicitly allows “Internet-based client leads” as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with the rules regarding division of fees and professional independence of the lawyer, and the lead generator’s communications are not misleading.
Ali signs up for the directory but after the Google AdWords failure, she realizes that she needs a little something more before clients will pick her name out of the interweb hat. She’s still looking for advice. So, here’s the question – what should Ali do next?