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Note that the Rules of Professional Conduct were substantially revised in 2006. The language and citations in any Advisory Opinion issued prior to this date may not be consistent with the current rules.
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Opinion NumberYear IssuedRPCSubjectOpinion
201401 2014 RPC 5.3(b), 5.3(c), 7.1, 7.2(b), 7.3(a), 7.3(b), 7.3(c), 7.4, 8.4(a) Participation in online lead generation services Facts:

Lawyer participates in an Internet-based lead generation service that charges participating lawyers a flat monthly membership fee. Lawyer provides information about her experience, practice areas, and the types of cases that she accepts. Potential clients provide the service with information about the type of lawyer that they seek.

Based upon the information provided to it, the service then sends the potential clients’ contact information to those member lawyers. The service does not send the lawyers’ contact information to the respective potential clients.

Questions:

1. May Lawyer participate in the lead generation service as described?

2. If so, may Lawyer initiate contact to one or more of the potential client leads?

Conclusions:

1. See discussion below.

2. Yes, qualified.

Discussion:

1. A lawyer may pay the reasonable cost of advertisements or permitted communications. RPC 7.2(b)(1). [n.1] But “[a] lawyer shall not give anything of value to a person for recommending the lawyer’s services….” RPC 7.2(b) (emphasis added). When a communication endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities, such a communication is a recommendation of the kind contemplated by RPC 7.2(b). “Lawyers are not permitted to pay others for channeling professional work.” RPC 7.2 cmt. 5.

A lawyer is permitted to publicly disseminate a variety of types of information, including but not limited to the following:

information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

RPC 7.2 cmt. 2; see also ABA Formal Op. 10-457 (2010). Merely paying the reasonable cost of disseminating the information contemplated by RPC 7.2 cmt. 2 does not constitute a recommendation of a lawyer’s services.

Therefore, Lawyer may pay others to disseminate such information, provided that the information is accurate. The payment can be calculated by a variety of methods, provided that the ultimate amount is reasonable. For example, the payment could be a flat fee, a monthly fee, or pay-per-click fee. [n.2]

“A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.” RPC 7.4(a). But a lawyer shall not state or imply that the lawyer is a specialist in a particular field of law, except as provided by RPC 7.4.[n.3] And a lawyer must be accurate when communicating about his or her services:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. RPC 7.1.

A lawyer may compensate others to provide marketing or client-development services. RPC 7.2 cmt. 5. But a lawyer shall be responsible for the conduct of a nonlawyer in certain circumstances; and it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct through the acts of another. See RPC 5.3(c)(1);[n.4] RPC 8.4(a).[n.5]

When a lawyer utilizes the assistance of a nonlawyer and has direct supervisory authority over the nonlawyer, the lawyer shall make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the lawyer’s professional obligations. See RPC 5.3(b).

Lawyer may pay others for generating client leads, such as Internet-based client leads, as long as (1) the lead generator does not recommend, endorse, or vouch for Lawyer or Lawyer’s services, (2) any payment to or communication by the lead generation service is otherwise consistent with the Rules of Professional Conduct, and (3) the lead generation service does not make misleading statements or material misrepresentations. Therefore, the lead generation service’s matching criteria must be based on disclosed, objective criteria. When a website attempts to match lawyers and clients based on a purported evaluation of the client’s needs, or when a website vouches for the qualifications of the participating lawyer, then the website is a referral service, and the lawyer must not pay to participate.[n.6]

If the lead generation service makes subjective decisions in order to match the client to the lawyer, then the lawyer’s payment constitutes an impermissible giving of value for recommending the lawyer’s services or channeling work.[n.7] If, instead, the service matches clients and lawyers simply based on objective information—such as geographic information akin to a directory service—and discloses the specific basis upon which it matches lawyers and clients, then the payment does not violate the rule.

Before participating in the lead generation service, Lawyer should reasonably research and evaluate the nature of the communications between the service and the prospective clients, as well as the basis of the lead generation’s matching or references to the Lawyer. If the service will misrepresent the nature of its function, then Lawyer’s participation could constitute professional misconduct.

Lawyers shall not participate in a lead generation service that is misleading, whether expressly or by implication. See RPC 7.1 (providing that a statement can be misleading if it “omits a fact necessary to make the statement considered as a whole not materially misleading”). If the service were to represent, expressly or impliedly, to the prospective clients that it has made a subjective match based on judgment—when the match is based solely upon objective information—then this would be misleading, and Lawyer must not participate.

Because of the likelihood that prospective clients will infer that the lead generation service is making subjective matching decisions, Lawyer must not participate in the lead generation service unless the service clearly discloses, in plain and conspicuous language, that the match was made solely based on specified objective information (e.g., geographic information, years of practice, or practice areas as described by the lawyer). Moreover, Lawyer must not participate in a lead generation service that states, implies, or creates a reasonable impression that it is making the referral without payment from the lawyer or has analyzed a person’s legal problems when determining which lawyer should receive the referral.

Also, if Lawyer participates in a permitted form of a lead generation service, then Lawyer must also confirm and ensure that communications by the lead generation service complies with RPC 7.3(c), which requires that every communication made pursuant to the rule contain the name and office address of at least one lawyer responsible for its content.

2. Lawyers are generally prohibited from real-time solicitations for professional employment from prospective clients:

A lawyer shall not directly or through a third person, by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1) is a lawyer;

(2) has a family, close personal, or prior professional relationship with the lawyer; or

(3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service.

RPC 7.3(a).[n.8]

Unless the prospective client has asked to be contacted by Lawyer, then Lawyer must not initiate a solicitation by telephoning the prospective client, initiating a real-time Internet communication with the prospective client (e.g., video chat or audio communication), or doing so in person. RPC 7.3 cmt. 9. Lawyer may, however, send an email, text message, or other written correspondence to the prospective client, soliciting professional employment, provided that the solicitation (1) does not involve coercion, duress, or harassment and (2) otherwise complies with the Rules of Professional Conduct. RPC 7.3(b)(2).

Lawyer may send a follow-up message that otherwise complies with the Rules of Professional Conduct. If the prospective client does not respond to Lawyer’s initial message or follow-up message, then additional communications from Lawyer might violate RPC 7.3(b). See RPC 7.3 cmt. 5.[n.9] If the prospective client has expressed a desire to not be solicited by Lawyer, then Lawyer must not send such an email, text message, or other written correspondence. RPC 7.3(b)(1).


Endnotes:

1. The rule provides as follows:

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may
(1) pay the reasonable cost of advertisements or communications
permitted by this Rule;

RPC 7.2(b)(1).

2. “Pay per click (PPC) (also called cost per click) is an internet advertising model used to direct traffic to websites, in which advertisers pay the publisher (typically a website owner) when the ad is clicked.” Wikipedia.org, Pay per click, at http://en.wikipedia.org/wiki/Pay_per_click (last visited December 10, 2014; see also Supreme Court of New Jersey Committee on Attorney Advertising Op. 43 (2011) (concluding, inter alia, that “attorneys are not flatly prohibited from paying ‘per-lead’ Internet advertising charges provided [that] the marketing scheme is advertising and not an impermissible referral service.”).

3. The rule provides, inter alia, as follows:

(d) A lawyer shall not state or imply that a lawyer is a specialist in
a particular field of law, except upon issuance of an identifying
certificate, award, or recognition by a group, organization, or
association, a lawyer may use the terms “certified”, “specialist”,
“expert”, or any other similar term to describe his or her qualifications
as a lawyer or his or her qualifications in any subspecialty of the law.
If the terms are used to identify any certificate, award, or recognition
by any group, organization, or association, the reference must:
(1) be truthful and verifiable and otherwise comply with Rule 7.1;
(2) identify the certifying group, organization, or association; and
(3) state that the Supreme Court of Washington does not recognize
certification of specialties in the practice of law and that the
certificate, award, or recognition is not a requirement to practice law
in the state of Washington.

RPC 7.4(d).

4. Rule 5.3 provides as follows:

With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the persons conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the persons conduct is compatible
with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would
be a violation of the Rules of Professional Conduct if engaged in by a
lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the
law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.

RPC 5.3.

5. Rule 8.4(a) provides as follows:

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another;

RPC 8.4(a).

6. See Supreme Court of New Jersey Cmte. on Attorney Advertising Op. 43 (2011) (citing Arizona Opinion 06-06 (2006), Wash. Adv. Op. 2106 (2006), and Kentucky Bar Assoc. Ethics Op. E-429 (2008)). Other jurisdiction have concluded that websites are advertising and not referral services when there is sufficient information provided to users and there are no assertions about the qualifications of the participating lawyers. Id. (citing Supreme Court of Texas Professional Ethics Cmte. Op. 573 (2006) and Ohio Board of Commissioners on Grievances and Discipline Op. 2001-2 (2001)).

7. See WASH. ADV. OP. 2106 (2006) (concluding that participation in legal marketing plan operated by an Internet company would be a violation where the company identified participants as “‘verified’ attorneys,” made “subjective judgments” that were more than “ministerial services,” and charged participating lawyers an annual membership fee but would extend membership for up to half of the original membership term if a lawyer’s resulting revenue did not exceed the paid membership fee); see also New York State Bar Assoc. Cmte. on Prof. Ethics Op. 799 (2006) (providing that “Lawyer may not participate in website that charges lawyer a fee to provide information about potential clients whom lawyer will then contact, where the website purports to analyze the prospective client’s problem and selects which of its subscribing lawyers should respond, nor may the lawyer contact the prospective client by telephone unless the prospective client has expressly requested a telephone contact.”).

8. This prohibition does not apply if the person contacted is a lawyer, has a family, close personal, or prior professional relationship with the lawyer, or has consented to the contact by requesting a referral from a not-for-profit lawyer referral service. RPC 7.3(a)(1)–(3).

9. The comment provides as follows:

But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).

RPC 7.3 cmt. 5.