Payment by a lawyer to a commercial marketing service only after a
prospective client contacts the lawyer upon receiving a proposal
for services from the lawyer who has learned of the client's need
from the marketing service's website does not violate Rule 7.3(f).
Under the operation of the marketing program the payment is for
permitted "advertising" rather than prohibited "solicitation."
Facts: A lawyer
inquires whether he may participate in a commercial marketing of
legal services organization run by Company X without violating
Mass. R. Prof. C. 7.3(f). Company X's program requires that each
lawyer who wishes to participate have a profile on its website
that, among other things, specifies his or her practice areas.
Prospective clients supply their names and basic details of their
situations by entering that information on the website, with the
understanding that the details they provide will be shared with
participating lawyers whose profiles list the practice area
relevant to their situations. The website then sends a message to
qualifying lawyers sharing the prospective clients' details and
inviting them to send proposals, which may include fee terms and a
description of how the responding lawyers would handle the matter,
to the prospective clients. The lawyers send their proposals and
the clients may (but are not obligated to) contact and retain any
of the lawyers who have made proposals.
Prospective clients pay nothing to use the service. A
participating lawyer pays an amount to Company X based upon the
type of representation involved only when a prospective client
retains the lawyer after the lawyer submits a proposal to work on
the client's matter.
Company X regards the arrangement as an efficient way for
lawyers to advertise. It does not recommend or appear to recommend
any lawyer and it does not analyze the prospective client's legal
problems (other than to identify the practice area) to determine
who should receive a referral and does not receive any payment for
making a referral.
Based upon the information set forth above, the Committee believes
that a lawyer's participation in the described program would not
violate Mass. R. Prof. C. 7.3(f). That rule provides that "[a]
lawyer shall not give anything of value to any person or
organization to solicit professional employment for the lawyer from
a prospective client." In the Rules of Professional Conduct,
"solicitation" refers to communications directed to particular
prospective clients for the purpose of obtaining business.
See, Comment 1 to Rule 7.3. Some forms of solicitation are
permitted under the Rules, subject to certain limitations to
protect against the possibility of undue influence, intimidation
and overreaching. Thus, Rule 7.3(c) generally permits solicitation
of prospective clients known to be in need of legal services in a
particular matter by written and other non-interactive
communications, while Rule 7.3(d) generally prohibits solicitation
of prospective clients through interactive communications from a
As we understand it, Company X's program does not direct
communications to any prospective client. Company X operates a
website accessible to the public. The website does not constitute
solicitation within the meaning of the rule, but instead
constitutes permissible advertising for which a lawyer may pay the
reasonable costs. See, Rule 7.2(a) and (c)(1). Comment 3A
to Rule 7.2 states that websites generally are "considered
advertising subject to this rule, rather than solicitation subject
to Rule 7.3" because websites are "not communication[s] directed to
a specific recipient." Comment 3A also observes that websites are
distinguishable from communications directed to specific
individuals because "the recipient must make an affirmative
decision to go to the sender's home page." Moreover, here the
prospective client not only initiates access to the website but
posts a request for proposals from participating lawyers. Any
directed communications to a client responding to the client's
voluntary request for proposals are permissible. See Mass. R. Prof. C.
7.3, cmt.4; Mass. R. Prof. C. 7.2, cmt. 3A ("In addition, if the
lawyer or law firm used an interactive forum such as a chat group
to solicit for a fee professional employment that the prospective
client has not requested, this conduct may constitute prohibited
personal solicitation under Rule 7.3(d).").
For these reasons, it is our view that a lawyer may participate
in the program described above without violating Rule 7.3(f). Note
that a participating lawyer must retain a copy of each solicitation
for professional employment made as part of the program for a
period of two years. See Mass. R. Prof. C.
7.3(c). The proposals made in response to prospective clients'
requests would constitute such solicitations.
This advice is that of a committee without official
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on May 8,