The New York State Committee on Professional Ethics recently issued an opinion dealing with an oft-cited issue for New York lawyers - whether they can participate in legal directories on the internet that match attorneys with potential clients. Opinion 799, issued in September 2006, provides some guidelines for using what the opinion calls "website matching services."
But before presenting its guidelines, the opinion deals with two related questions in this area: 1) Is participating in such a web-based legal directory a violation of Disciplinary Rule 2-103(B), which prohibits a lawyer from paying for a recommendation/referral; and 2) Is contacting a potential client based on information obtained from the website a violation of Disciplinary Rule 2-103(A), regarding solicitation of employment.
In response to the first inquiry, the opinion addresses the issue of whether the internet based legal directories qualify as referral services for which the lawyer would be considered to be paying for a referral by virtue of paying to participate in the directory. According to the opinion, the lawyer is in violation of DR 2-103(B) where the directory matches attorneys and prospective clients "based on an analysis of [the particular client's] problem."
The opinion uses the example of a slip and fall case as follows: if the "potential client describes a slip-and-fall incident on an intake form and the website determines that the problem calls for a personal injury lawyer and then recommends one or more attorneys in that area, the website is 'recommending' those lawyers." According to the opinion, this would be a violation even if the website matches attorneys and clients using a computer program based upon search terms, rather than by human intervention. In New York, only a qualified referral service is permitted to match lawyers and potential clients in this manner.
As to the second question, the opinion found that the potential client's actions in posting on the website constitute an 'invitation' for lawyers to contact the potential client by telephone. Therefore, a lawyer contacting said potential client is not in violation of DR 2-102(A), which prohibits in person or telephone solicitation of a potential client (with certain stated exceptions).
Now for the guidelines. The opinion sets forth a number of considerations for lawyers seeking to participate in web-based legal directories. For example, the opinion notes that New York lawyers should refrain from using these services if:
- the directory "recommends" the lawyers that subscribe, or otherwise "makes claims about the competence or character" of the participating lawyers;
- the service 'analyzes' the prospect's legal problem in order to find a suitable lawyers; or
- the service does not specify the means of communication lawyers may employ when responding to prospective clients who post on the site.
Further, the opinion provides some guidelines regarding the prevention of "inadvertent disclosure by the prospective client of privileged information."
The opinion is an important one, and New York lawyers should familiarize themselves with it. Many online legal directories or web-based matching services actively seek out lawyers to participate in their sites. Lawyers in all states need to be particularly cognizant of their state's ethical rules before agreeing to participate in any such services.