Ethics Opinion

Opinion 2014-2

February 2014

Summary: 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.

Discussion: 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 lawyer.

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 government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on May 8, 2014.