Can a lawyer submit bids for legal work that clients post on an internet comparison website without violating the advertising or referral rules?
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This page answers the general question as of 2000. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A business created an "international attorney comparison" website where potential clients could post legal projects and interested lawyers could submit profiles with their qualifications, expected completion date, and proposed fee, letting the client compare and choose. The Committee addressed the advertising, solicitation, referral, confidentiality, and conflict issues.
On advertising and solicitation, the Committee concluded that where the request for representation is initiated by the client rather than the lawyer, responding to it does not, standing alone, constitute advertising or solicitation under the Code. It compared the process to an ordinary bidding process or a request for proposals, and to court-run "auctions" for class counsel. It cautioned, however, that any communications to prospective clients must not be false, deceptive, or misleading and must conform to DR 2-101(C). On the referral plan, the Committee concluded that because the lawyer pays no fee to the provider, the plan lacks the element regulated by DR 2-103(B)'s prohibition on for-profit referral plans, so it does not come within that rule.
On confidentiality and conflicts, the Committee found nothing inherently improper in using the internet to communicate, agreeing with N.Y. State 709 that unencrypted email may ordinarily be used to convey confidential information, while noting some highly sensitive information warrants a more secure channel. It flagged that the profiles could contain a confidence such as the anticipated cost, but nothing requiring extraordinary protection. It warned that the provider's plan to give participating lawyers the names of the client and adverse parties, though useful for conflict checks under DR 5-105(E), could prematurely reveal confidences (such as the identity of a client contemplating suit), so the provider should establish procedures to avoid premature disclosure until a tentative selection of counsel is made.
Currency note
This opinion was issued in 2000, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The advertising and solicitation rules have since changed substantially. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Is submitting a bid for a client's posted legal project considered solicitation?
A: No, by itself. The opinion concluded that responding to a client-initiated request for representation does not, standing alone, constitute advertising or solicitation under the Code, because the client initiated the contact.
Q: Does participating in the bidding website violate the referral-plan rules?
A: No. The opinion concluded the plan is not a prohibited for-profit referral plan under DR 2-103(B) because the lawyer pays no fee to the provider, so it lacks the element that rule regulates.
Q: Can the lawyer communicate with the client over the internet?
A: Generally yes. The opinion concluded unencrypted email may ordinarily be used to convey confidential information, while noting that especially sensitive information may call for a more secure means of communication.
Q: What confidentiality risk did the committee flag in the bidding process?
A: The opinion warned that prematurely revealing the names of the client and adverse parties could divulge confidences (such as the identity of a client contemplating suit), so the provider should adopt procedures to avoid premature disclosure even though such information aids conflict checks under DR 5-105(E).
Background and rules framework
The opinion interpreted New York's then-governing DR 2-101 (advertising, the analog of Model Rule 7.2), DR 2-103 (solicitation and referral plans, the analog of Model Rule 7.3), DR 4-101(B) (confidences and secrets, the analog of Model Rule 1.6), and DR 5-105(E) (conflict-check records, related to Model Rule 1.7). The analysis turned on the client-initiated nature of the contact and the absence of any fee paid to the provider.
Citations and references
Rules of Professional Conduct (then in effect):
- DR 2-101 (advertising; analog of Model Rule 7.2)
- DR 2-103 (solicitation and referral plans; analog of Model Rule 7.3)
- DR 4-101(B) (confidences and secrets; analog of Model Rule 1.6)
- DR 5-105(E) (conflict-check record-keeping)
Other opinions cited:
- N.Y. State Bar Opinion 709 (1998): internet communications and conflict checks
See also
Source
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