Can a lawyer pay a commercial website that lets prospective clients post their needs and invite proposals, paying only when a client retains the lawyer?
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This page answers the general question as of 2014. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer asked whether he could join a marketing program run by a company whose website lets prospective clients enter their names and case details, which are shared with participating lawyers whose profiles list the relevant practice area. Those lawyers send proposals, including fee terms, and the client may but need not retain any of them. The lawyer pays the company only when a prospective client retains him after a proposal. The opinion concludes participation would not violate Rule 7.3(f).
Rule 7.3(f) bars giving anything of value to a person or organization to solicit professional employment from a prospective client. The opinion explains that solicitation, under Comment 1 to Rule 7.3, refers to communications directed to particular prospective clients to obtain business, and that the company's program does not direct communications to any prospective client. The website is publicly accessible, and Comment 3A to Rule 7.2 treats websites as advertising rather than solicitation because the recipient must affirmatively go to the site.
The opinion emphasizes that the client not only initiates access but posts a request for proposals, so any directed communications responding to that voluntary request are permissible. The committee concludes the lawyer may participate and pay the reasonable costs as advertising under Rule 7.2(a) and (c)(1). It notes one condition: a participating lawyer must retain a copy of each proposal, which counts as a solicitation, for two years under Rule 7.3(c).
In practice
Under this opinion, conduct in which a lawyer pays a marketing service only upon a client's retention is permitted as advertising under Rule 7.2, not paid solicitation under Rule 7.3(f), where the client initiates contact through a public website and posts a request for proposals. The opinion identifies client initiation and the absence of lawyer-directed communications to specific prospects as the features that place the program on the advertising side of the line.
The opinion holds that proposals sent in response to a client's posted request are permissible directed communications, and that the lawyer must retain a copy of each such proposal for two years under Rule 7.3(c).
Common questions
Q: Isn't paying for client leads a prohibited paid solicitation?
A: The opinion concludes it is not here, because Rule 7.3(f) targets paying someone to direct solicitations to particular prospects, while this program operates a public website the client must choose to use, which Comment 3A to Rule 7.2 treats as advertising.
Q: Does it matter that the client posts a request for proposals first?
A: Yes. The opinion stresses that because the client initiates access and voluntarily requests proposals, the lawyers' responsive communications are permissible rather than prohibited solicitation.
Q: Is there any recordkeeping condition?
A: Per the opinion, the lawyer must retain a copy of each proposal, which the committee treats as a solicitation, for two years under Rule 7.3(c).
Background and rules framework
The opinion interprets Massachusetts Rule of Professional Conduct 7.3 (solicitation of clients), including 7.3(f) (paying others to solicit), 7.3(c) and 7.3(d) (limits on directed solicitation and the two-year retention requirement), and Comment 1, together with Rule 7.2 (advertising) and its Comment 3A distinguishing websites from solicitation. These correspond to the ABA Model Rules on advertising and solicitation as they stood before the 2018 Model Rule 7.x restructuring.
Citations and references
Rules of Professional Conduct:
- MR 7.3 / Mass. R. Prof. C. 7.3(f), 7.3(c), 7.3(d) (solicitation; paying others; retention)
- MR 7.2 / Mass. R. Prof. C. 7.2 (advertising; Comment 3A on websites)
See also
- ABA Ethics Op. 465: deal-of-the-day and group-coupon marketing
- ABA Ethics Op. 501: who is responsible for solicitation
Source
- Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2014-opinion-14-2/opinion-14-2
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