By Lazar Emanuel [Originally published in NYPRR December 2006]
Click on Google or any of the other search engines and search under Find a Lawyer. You’ll find page after page of for-profit websites offering to connect you with a lawyer in your area. Some of these sites are practice-area-specific (e.g., patent law, copyright law, and matrimonial matters, personal injury claims). Some range over the entire panoply of legal services. Many of these sites recognize that it may be frustrating to a prospective client to click on an area of practice only to find an inscrutable list of lawyers’ names and addresses. They ask the client to state the basic nature of her legal problem and then refer the client to a lawyer who has indicated to the website in advance that he is interested in handling that kind of matter. For this service, lawyers pay a fee based upon the extent of “the benefit” to the lawyer.
In Opinion 799 (9/29/06), the Committee on Professional Ethics of the NYSBA held that a New York lawyer may not participate in a website which bases its referrals on the client’s statement of her legal problem. (In October 2006, two other states — Washington and Arizona — restricted the use by lawyers of website referral services.) The New York Committee found that these referrals violated the provisions of DR 2-103(B), forbidding payment by a lawyer to anyone for recommending his services.
The New York Committee said:
We find that the line is crossed …when a website purports to recommend a particular lawyer or lawyers for the prospective client’s problem, based on an analysis of that problem. For example, if a potential client describes a slip- and-fall incident on an intake form and the website determines that the problem calls for a personal injury lawyer and then recommends one or more attorneys in that area, the website is “recommending” those lawyers… This conclusion applies whether the website’s selection of counsel is the result of human intelligence or a computer program designed to respond to certain key words (e.g., if the potential client uses the words “injury”, “doctor” or “fell” on an intake form, the program would characterize the problem as one of “personal injury” in order to recommend lawyers). Such activity is prohibited by other than a qualified lawyer referral service. [DR 2 103(D).]
[Editor’s note: DR 2-103(D) limits qualified referral services to: a legal aid or public defender’s office; a military legal assistance office; a referral service authorized by law or sponsored and approved by a bar association, and any bona fide organization which furnishes or pays for legal services for its members or beneficiaries.]
The “line” the Committee was referring to as having been “crossed”, was the line between a traditional ad on paper (newspaper, yellow pages) and online directory services which base their referrals on a statement describing the nature of the client’s matter.
The question is at what point an online “directory” website becomes a referral service for purposes of DR 2-103(B). For example, an online yellow pages that provides tools by which a potential client can filter a list of attorneys by geography and/or practice area (e.g., to create a list of attorneys in “Albany” who do “personal injury” work) does not violate the rule.
The Committee’s Opinion would require a New York lawyer to verify that a website which listed his name for a fee did not encourage a potential client to describe the nature of her claim, but limited its references to the lawyer’s name, location, and practice area.
Contacting Prospect Client by Telephone
The NYSBA Committee went on to ask whether a lawyer who uses a Web referral service violates DR 2-103(A)’s prohibition against solicitation if he responds to the client by telephone. DR 2-103(A) would clearly appear to enjoin contact by telephone:
A lawyer shall not solicit professional employment from a prospective client:
1. By in-person or telephone contact, except that a lawyer may solicit professional employment from a close friend, relative, former client or current client.
However, the Committee held, a telephone call in response to an inquiry by a prospective client is not a solicitation, but a permissible response to the client’s “invitation.” The Committee agreed with the New York City Bar that the client has invited the contact, and that an invited contact is not a “solicitation” within the meaning of the Code [N.Y. City Opinion 2000-1].
Nonetheless, the Committee said, “in view of the Code’s express prohibition of telephone solicitation, we believe that follow-up contacts by phone must be preceded by a clear and unambiguous request from the potential client for telephone contact.” Generally, it would not satisfy the prohibition against telephone contact that the website contain a statement that by using the website the prospective client was consenting to having one or more lawyers telephone her. On the other hand, it generally would be sufficient if the potential client were specifically asked to check a box requesting telephone contact.
Committee’s General Comments & Guidelines
In Opinion 799, the Committee offered a number of general recommendations and guidelines to lawyers who wish to register with an online search service:
1. A lawyer’s public communications — including his listings on a website — must not be “false, deceptive or misleading.” DR 2-101(A).
2. All advertising — including website listings — must include the lawyer’s name, address and telephone number. DR 2-101(K). “…[T]he use of a web site or e-mail address as the sole identifier of a firm’s office address does not satisfy the requirement of DR 2-101[K]”).
3. The website listing service should:
• Refrain from recommending the subscribing lawyer or from making claims about the competence or character of its subscribers;
• Refrain from claims that it will analyze the prospective client’s legal problem in order to identify and recommend a suitable lawyer;
• Explain that its subscribing lawyers have paid to be listed with the service;
• State the full name, office address and telephone number of each lawyer participating in the service;
• Specify the means of communication that its subscribers may use in response to the prospective client’s posting;
• Provide for telephone contact only if the prospective client clearly and unambiguously authorizes the service to forward her request and telephone number to the attorney; and
• Advise all prospective clients that its services do not constitute legal representation or the practice of law.
4. In addition, a lawyer who subscribes to a website service should take reasonable measures to avoid the inadvertent disclosure by the prospective client of privileged information, including assuring that the website:
• Afford the prospective client an opportunity to screen the list of lawyers who will be shown the prospective client’s posting and to remove lawyers from the list;
• Reveal the prospective client’s identity only to those subscribing lawyers selected by the prospect;
• (and the lawyer) minimize the communication of confidential information between the lawyer and the prospective client until the lawyer has been retained and has completed an appropriate conflicts check;
• Caution the prospective client that the information provided to the service may not be protected by the attorney-client privilege, when that statement is applicable.
Finally, the Committee warned that a lawyer subscribing to an Internet search service should:
• Avoid engaging in any form of “coercion, duress or harassment.” [DR 2-103(A)(2)(c).]
• Treat a prospective client with the courtesy and integrity expected of all lawyers. [DR 1-102(A)(7).]
• Refrain from further retention discussions with the prospect if she evidences an unwillingness to engage the lawyer.
Lazar Emanuel is the publisher of NYPRR.
DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.