Can a Colorado lawyer pay to participate in an online lawyer-marketing or lead-generation program, or does Rule 7.2 treat it as a prohibited paid referral service?
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This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 122 (adopted March 20, 2010, amended October 16, 2010) addresses the growing market of internet-based lawyer-marketing programs under Colo. RPC 7.2. Rule 7.2(a) permits advertising through electronic media, and Rule 7.2(b) bars a lawyer from giving "anything of value" for recommending the lawyer's services, subject to two exceptions the opinion treats as pivotal: Rule 7.2(b)(1) lets a lawyer pay the reasonable costs of permitted communications (which Comment [5] says includes online directory listings), and Rule 7.2(b)(2) lets a lawyer pay the usual charges of a not-for-profit or otherwise qualified lawyer referral service. Read together, the Committee concludes, the rule makes for-profit referral services impermissible while permitting paid advertising and directory listings.
The opinion frames the line as a spectrum and analyzes two hypotheticals at the poles. A pure online directory (the opinion's "FictitiousLegalDirectory.com") is permissible: it identifies itself as advertising, charges a fixed fee rather than per lead, and lists lawyers ministerially by practice and geographic area, leaving the client to contact the lawyer directly. A for-profit lead service (the opinion's "FictitiousLegalReferral.com") is not: it charges per client contact, sells "recommended" status based solely on payment without screening or disclosing that basis, and represents that it pairs clients with the "right," "qualified," or "highest quality" lawyer. The opinion concludes the latter violates Rule 7.2 because it charges based on clients obtained and holds itself out as recommending lawyers without an objective basis or adequate disclosure.
Because programs vary, the opinion sets out criteria a marketing program must satisfy to be permissible advertising: (A) lawyer selection in response to a client inquiry is non-subjective, performed by software or without discretion; (B) the program makes clear that only fee-paying lawyers may respond and makes no unsupported quality claims, and does not describe itself as referring or recommending lawyers; (C) the fee is a reasonable charge for advertising and public-relations services; (D) the program does not so limit participation by geographic or practice area that it effectively steers particular clients to a particular lawyer; and (E) any initial communication the lawyer sends complies with Colo. RPC 7.3(d). The opinion notes that other states have split on similar programs and that Colorado has not designated any authority to approve for-profit referral services.
In practice
Under the rules as they stood at the time of the opinion, a Colorado lawyer evaluating an online marketing program must determine whether it operates as a directory-style advertisement or as a for-profit referral service. The opinion holds that paying the fixed, reasonable costs of an advertising directory is permissible under Rule 7.2(b)(1), while paying a for-profit service that recommends specific lawyers or charges per lead is prohibited, and it supplies five criteria (non-discretionary selection, clear disclosure with no unsupported quality claims, reasonable advertising fees, no participation limits that effectively steer clients, and Rule 7.3(d) compliance) as the operative test. Lawyer-advertising rules (Model Rules 7.1 to 7.3) have been significantly revised in many jurisdictions since 2010, so a lawyer should verify Colorado's current Rule 7.2 text before relying on the specific line this opinion draws.
Common questions
Q: Can a Colorado lawyer pay to be listed in an online legal directory?
A: Yes. The opinion concludes that paying the fixed, reasonable cost of an online directory listing that identifies itself as advertising is permitted under Colo. RPC 7.2(b)(1) and Comment [5], which expressly includes "on-line directory listings."
Q: Can a lawyer pay a for-profit service that sends client leads?
A: Generally no. The opinion concludes that a for-profit referral service that purports to recommend specific lawyers or charges per client contact is impermissible under Rule 7.2(b), which permits paying the usual charges only of a not-for-profit or qualified referral service.
Q: How do I tell an advertising directory from a referral service?
A: By the opinion's criteria. A permissible program selects lawyers non-subjectively (by software or fixed criteria), discloses that only paying lawyers appear and makes no unsupported quality claims, charges a reasonable advertising fee, does not limit participation so as to steer particular clients to a particular lawyer, and ensures the lawyer's initial client communication complies with Rule 7.3(d).
Q: Is paying for "premium" or more prominent placement allowed?
A: In a directory, yes. The opinion treats paying a larger fixed fee for a more prominent directory listing as permissible advertising; what is impermissible is paying for "recommended" status that the service presents as a substantive endorsement without an objective basis or disclosure.
Background and rules framework
The opinion interprets Colo. RPC 7.2 (advertising), particularly 7.2(b) and its exceptions in 7.2(b)(1) (reasonable costs of permitted communications, including online directory listings under Comment [5]) and 7.2(b)(2) (usual charges of a not-for-profit or qualified referral service, defined in Comment [6]). It reads Rule 7.2 with Rule 7.1 (truthful communications), Rule 7.3 and 7.3(d) (solicitation), and Rule 1.5(e) (referral-fee prohibition), and it cites the ABA Model Lawyer Referral Rules and a range of split state authority.
Citations and references
Rules of Professional Conduct:
- Colo. RPC 7.2 / Model Rule 7.2 (advertising; 7.2(b)(1) and (b)(2) exceptions; Comments [5] and [6])
- Colo. RPC 7.1 / Model Rule 7.1 (communications concerning a lawyer's services)
- Colo. RPC 7.3, 7.3(d) / Model Rule 7.3 (solicitation)
- Colo. RPC 1.5(e) / Model Rule 1.5 (division of fees; referral-fee prohibition)
Other opinions cited:
- State Bar of Ariz. Ethics Op. 06-06 (2006); Wash. State Bar Informal Op. 2106 (2006), referral services impermissible
- N.C. State Bar 2004 Formal Op. 1; Maine Op. 174 (2000); S.C. Advisory Op. 01-03, similar programs approved
- Tex. Ctr. for Legal Ethics Ops. 561 (2005) and 573 (2006); Ohio Bd. Adv. Op. 2001-2, criteria-based approaches
See also
- ABA Formal Op. 465: Deal-of-the-Day Marketing Programs
- ABA Formal Op. 474: Referral Fees and Conflicts of Interest
Source
- Landing page: https://www.cobar.org/ethicsopinions
- Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_122_2011.pdf
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