Can a New York lawyer pay to participate in a website that analyzes a prospective client's problem, picks lawyers to respond, and lets them contact the client?

Plain-English summary

The committee addresses websites that put lawyers in touch with people seeking representation. A prospective client describes a legal problem; the website notifies subscribing lawyers who pay to participate, and one or more may then contact the prospect by email or phone. The services vary: some have a staff attorney screen the request and select lawyers, while others say they merely forward the prospect's submission to lawyers the prospect chose using filters for geography or practice area. The committee gives general guidance rather than ruling on every permutation.

On paying for referrals, DR 2-103(B) bars a lawyer from giving anything of value to recommend or obtain employment. The committee explains that a traditional or online directory that simply lets a prospect filter lawyers by geography and practice area (an "electronic yellow pages") does not "recommend" anyone. The line is crossed when the website purports to recommend particular lawyers based on an analysis of the prospect's problem (for example, classifying a slip-and-fall as a personal injury matter and recommending injury lawyers), whether that selection is done by a person or by a keyword program. Such activity is permitted only for a qualified lawyer referral service under DR 2-103(D). The committee also clarifies its earlier opinion N.Y. State 779: that opinion's bar applies to services that effectively make referrals or actively solicit and obtain clients (as where the service had clients sign a retainer and collected a fee before the lawyer agreed to take the matter), not to ordinary directory listings.

On solicitation, DR 2-103(A) bars in-person and telephone solicitation of prospective clients (with narrow exceptions). The committee agrees with the City Bar that a lawyer responding to a prospect's own posting inviting contact is not "soliciting," because the prospect invited it. But given the Code's express bar on telephone solicitation, a follow-up phone call must be preceded by a clear and unambiguous request from the prospect for telephone contact; a generic website term deeming the prospect to consent is not enough, while a specifically checked box authorizing a call generally is. The committee adds guidelines: the service should not tout its lawyers' competence, should not claim to analyze the problem to find a suitable lawyer, should disclose that lawyers paid to be listed, should give each lawyer's office address and phone number, and should warn that using the service is not legal representation. Participating lawyers should also take reasonable steps to prevent the prospect's inadvertent disclosure of privileged information before a conflicts check and retention.

In practice

The opinion holds, under the former Code as it stood at the time, that a New York lawyer may not pay to participate in a website that analyzes a prospect's problem and selects lawyers to respond, because that crosses from permissible directory listing into a recommendation/referral barred outside a qualified lawyer referral service (DR 2-103(B), (D)). It also holds that a participating lawyer may not telephone a prospect unless the prospect clearly and unambiguously requested phone contact, since the Code bars telephone solicitation (DR 2-103(A)). The committee permits paid participation in services that function as filterable directories and meet its disclosure guidelines, and narrows its earlier N.Y. State 779 to services that effectively refer or obtain clients.

Common questions

Q: Can a lawyer pay to be listed in an online legal directory?

A: Yes, if the site functions as a filterable directory (by geography and practice area) rather than analyzing the prospect's problem to recommend lawyers. The committee treats a pure "electronic yellow pages" as permissible advertising, not a referral.

Q: When does a matching website become an improper referral service?

A: When it purports to recommend particular lawyers based on an analysis of the prospect's problem, whether by a staff attorney or a keyword program. The committee concludes that is "recommending" employment, permitted only for a qualified lawyer referral service under DR 2-103(D).

Q: Can a lawyer call a prospect who submitted an inquiry through the site?

A: Only if the prospect clearly and unambiguously requested telephone contact, for example by checking a box authorizing a call. The committee concludes a generic consent buried in the website's terms is not enough given the Code's bar on telephone solicitation.

Q: Does responding to a prospect's posting count as solicitation?

A: No. The committee agrees with the City Bar that where the prospect's own posting invites contact, the lawyer's response is not "solicitation," because the prospect invited it; the telephone limitation still applies.

Background and rules framework

The opinion interprets the former Code's advertising and solicitation rules: DR 2-103(B) (paying to recommend or obtain employment) and DR 2-103(D) (qualified lawyer referral services), analogues of ABA Model Rule 7.2; DR 2-103(A) (solicitation), an analogue of Model Rule 7.3; and DR 2-101(A) and (K) (communications must not be false, deceptive, or misleading and must include office identifying information), analogues of Model Rule 7.1. It also references DR 3-101(A) on unauthorized practice.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications about a lawyer's services)
• MR 7.2 (advertising; referral arrangements)
• MR 7.3 (solicitation of clients)
• Former Code DR 2-103(A), (B), (D); DR 2-101(A), (K); DR 3-101(A); DR 1-102(A)(7)

Statutes:

• New York Judiciary Law section 495(1)(d) (corporation furnishing attorneys)

Other opinions cited:

• N.Y. State 779 (2004): paying a marketer for "leads" to prospective clients violates DR 2-103(B); narrowed here
• N.Y. State 756 (2002): a website or email address alone does not satisfy the office-address requirement
• N.Y. City 2000-1: a lawyer's response to a prospect's web posting is not advertising or solicitation
• Texas Op. 561 (2005) and Op. 573 (2006): internet matching services that exercise discretion in selecting lawyers

See also

• NY State Bar Op. 1131: Paying a for-profit lead-generation service
• NY State Bar Op. 1132: Paying Avvo Legal Services a marketing fee
• NY State Bar Op. 1113: Per-diem lawyers and an online directory

Source

• Landing page: https://nysba.org/ethics-opinion-799/