Daily Dispatch

On Balance

Ethics of Lead Generation Services

By | Aug.10.16 | Daily Dispatch, Ethics, Legal Marketing, On Balance

On Balance

Attorney advertising has morphed from Yellow Pages ads to web platforms — and referral services have evolved as well. Once the province of nonprofit bar associations and entirely permitted under the ABA Model Rules, what we used to call simply “referral services” now include various types of online lead generation services.

When you consider joining one of these services to build your practice, how can you be sure you’re not getting involved in an unethical business model that will lead to trouble with your state bar? Here are some guidelines.

Key Ethics Concerns

The big concerns from an ethics perspective are (1) Model Rule 7.2 and its Comment 5 specifically prohibit paying anyone to recommend a lawyer’s services, (2) fee splitting with non-lawyers, and (3) misleading the public.

There is also an overarching concern any time you use an outside service to assist in advertising: You cannot control how the “advertising” is done, meaning your name may end up attached to something that does not comply with your state’s attorney advertising rules.

Types of Lead Generation Services

The phrase “lead generation service” may be used generically to describe services that differ from an ethics perspective. The main categories:

Lawyer directory. Online lawyer directories list lawyers with various details, including their geographic location and practice area. They may include ads or premium listings that lawyers pay for, and those premium postings will move the lawyer to the top of the list in a particular practice area or geographic area. The directory service itself provides no endorsement of any specific lawyer.

Legal referral service. These services require lawyers to pay a fee to be included and typically include an endorsement of the listed lawyers. The endorsement may take the form of a general statement that the service “pairs” consumers with “the best” lawyer for the consumer’s legal problem. In truth, the service lists and “recommends” lawyers who pay the most to the service. Some services charge lawyers for access based on how much money the lawyer earns through the service.

Legal matching service. Between lawyer directories and legal referral services are legal matching services, where consumers submit details of their legal problems and lawyers pay for access to those leads. Access to any particular consumer’s inquiry is given to any lawyer who has paid to participate in the service and meets the basic criteria for the consumer’s problem (based on such criteria as geographic and practice area). Lawyers do not pay more based on how much they may earn through the service.

What’s Allowed and What’s Not?

With these three basic types of services available, and marketing companies coming up with creative variations on them all the time, how do you know if what you’re getting into is allowed?

Primary rule: No paying to be recommended. Model Rule 7.2 and its Comment 5 make it abundantly clear: You may not pay anyone to recommend you. Evaluate any potential lead generation service with this in mind. Is the service recommending you? Is the service making the consumer believe that you are somehow evaluated and paired with them because of your specific abilities? Is the service endorsing you? If so, it is probably not allowed.

When Washington looked at this question, it said that as soon as the service injects any subjective evaluation of which attorney to show to a prospective client in the service, it is a prohibited recommendation.

Neutral directories and associated advertising permitted. Online listings of lawyers that are truly pure directories (think Avvo.com) are allowed. States including Colorado have considered this type of service and specifically permit it. Even if lawyers are permitted to pay for an ad that places them at the top of the listings, it is still allowed.

Okay to pay for the cost of disseminating information. What Model Rule 7.2 does allow is to pay for the cost of disseminating your advertising. So, if you’re paying a monthly fee to be listed in a directory, or paying an ongoing fee for access to leads in a legal matching service, your state likely permits it. Pay-per-click advertising typically is permitted under this provision.

Legal matching programs largely permitted. An entire sub-industry of legal marketing has been created with online legal matching services like LegalMatch.com. States that have considered them permit them, and the Federal Trade Commission has spoken out in favor of them being allowed. Factors that make them permissible are that lawyers pay a flat fee to participate; that fee is not tied in any way to the money lawyers earn from the leads generated by the service; consumers initiate the contact with the service by filling out a request form; and while lawyers respond to the request for information, it is then the consumer who decides which lawyers to follow up with individually. (For more specifics on this point, check out Rhode Island’s discussion.)

Keeping Your Marketing Ethically Sound

While lead generation services will assure you that they are above board, keep in mind that the lawyer is ultimately responsible for adhering to the rules of professional conduct — and the one facing the state bar for any violations. To make sure you stay on the right side of the rules, look very carefully at how the service is structured. Make certain you are not paying to be recommended nor paying the service based on how much you earn from their leads. And keep a close eye on your state’s ethics regulator for specific rulings in this evolving area.

Megan Zavieh focuses her practice exclusively on attorney ethics, providing limited scope representation to attorneys facing disciplinary action, and guidance to practicing attorneys on questions of legal ethics. At age 21, she earned her J.D. from the University of California at Berkeley School of Law. Megan is admitted to practice in California, New York and New Jersey, as well as in Federal District Court and the U.S. Supreme Court. In "On Balance," Megan writes about the issues confronting lawyers in the new world of practicing law. She blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

Illustration ©iStockPhoto.com

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