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THE PROFESSIONAL ETHICS
COMMITTEE
FOR THE STATE BAR OF TEXAS
Opinion No. 573
July 2006
QUESTION PRESENTED
Under the Texas Disciplinary
Rules of Professional Conduct, what requirements must be met in
order for a Texas lawyer to participate in a privately sponsored
internet service that obtains information over the internet from
potential clients about their legal problems and forwards the
information to lawyers who have paid to participate
in the internet service?
STATEMENT OF FACTS
A Texas lawyer is considering
participation in an internet client-lawyer service (the “Service”)
that allows lawyers to participate in the Service for the payment
of a fee. The Service is a for-profit business that provides an
internet web site offering potential clients with legal problems
the opportunity to receive communications from
participating lawyers concerning legal services available with
respect to legal problems identified by potential clients.
Lawyers can participate in the
Service upon payment of a fixed fee. Lawyers pay a fee based on
the geographic areas and legal practice areas for which they wish
to be included in the Service. Lawyers can be included only for
geographic areas in which they are licensed to practice law. The
Service is not involved in the retention of
a participating lawyer by a potential client, and it does not
receive any compensation from potential clients or lawyers based
on retention, legal fees paid, or results obtained by a lawyer.
When potential clients wish to
seek a lawyer using the Service, they go to the Service web site
and input their geographic location, the general area of law of
their legal problem, and possibly other information relevant to
their selection of a lawyer. Within the preset general areas of
law, potential clients may then choose more specific legal practice
areas and provide further detail by choosing among menus of alternatives
or entering certain limited information such as relevant dates.
Potential clients may also be given the opportunity to enter a
short narrative describing their problem.
Lawyers for a particular potential
client are identified based on geographic location, either statewide
or on a more limited basis such as city or county, and on the
legal practice area involved as specified by the potential client
using the menus provided on the Service web site. The Service
provides information from the potential client to the lawyers
identified and each such lawyer is then free to decide whether
to communicate advertising information to the potential client.
Every lawyer participating in the Service for a geographic and
legal practice area combination that corresponds to the selections
made by a potential client will receive a communication from the
Service regarding the potential client and will have the opportunity
to communicate with the potential client.
The Service does not purport
to select, rate, or recommend lawyers, including lawyers that
correspond to a potential client's information, but the Service
may limit the number of lawyers who are permitted to participate
for certain geographic areas or with respect to certain legal
practice areas.
DISCUSSION
In Professional Ethics Committee
Opinion 561 (August 2005), the Committee concluded that the Texas
Disciplinary Rules of Professional Conduct prohibit a lawyer from
paying a fee to be listed on a for-profit internet site that obtains
information over the internet from potential clients and forwards
the information to one or more
lawyers who have paid to participate with respect to the internet
site. Opinion 561 deals with client-lawyer internet connection
services in general and does not address whether adherence to
limitations not considered in that Opinion could make such a service
permissible under the Texas Disciplinary Rules. The internet service
described in Opinion 561 was not restricted from using discretion
in selecting, from among all qualified lawyers participating in
the service, the specific lawyers who would receive information
concerning a particular potential client. Without more, the absence
of a limit on the exercise of such discretion in the service's
selection of
lawyers rendered the service considered in Opinion 561 an impermissible
referral service rather than a permitted advertising or public
relations service.
This Opinion addresses the question
of whether compliance with additional requirements or restrictions
in connection with such a service could make participation in
the service permissible for Texas lawyers.
The Texas Disciplinary Rules
of Professional Conduct include provisions dealing with advertisements
in the public media and participation in lawyer referral services.
Rules 7.03(b) and 7.04 prohibit the payment of a fee by a lawyer
to a non-lawyer for soliciting or referring prospective clients
to the lawyer, unless the referral is
from a lawyer referral service that meets the requirements of
chapter 952 of subtitle B of title 5 of the Texas Occupations
Code, which is know as the Texas Lawyer Referral Service Quality
Assurance Act. The Service is not a lawyer referral service meeting
the requirements of this statute because it is a privately owned,
for-profit organization.
Rules 7.03(b) and 7.04 also permit
a lawyer to pay reasonable fees for advertising and public relations
services rendered in accordance with the Rules, including paying
reasonable fees for advertising in electronic (or internet) telephone
directories and legal directories. Thus, the question is what
additional elements must be included
in a lawyer-client internet connection service to make the service
a permissible advertising or public relations service rather than
a prohibited referral service. As a basis for answering this question
it is helpful to consider the defining characteristics of referral
services and internet directories.
Referral services such as those
run by bar associations have historically been operated by telephone.
A person with a legal problem looking for a lawyer can call the
referral service and describe the problem to a referral service
staff person who answers the phone. This staff person will determine
the legal practice area into which the
problem falls and then give the caller the name and contact information
of one or more lawyers who are listed with the referral service
as seeking clients in the particular legal practice area. Most
often, the lawyer or lawyers chosen are simply the next in line
on a list of eligible lawyers. However, the staff person making
the selection
can exercise discretion in terms of deciding which lawyer from
among those eligible will be recommended to the caller. In addition,
the staff person would often make a determination as to the legal
practice area relevant to the potential client's problem. Because
the communications with a referral service normally result in
the referral
of only one or two lawyers and because referral services are non-profit
organizations typically associated with a bar association, potential
clients will frequently believe that an element of recommendation
accompanies the referral.
Internet legal directories typically
allow lawyers to be listed in the director for a fee. Lawyers
provide information about themselves that is provided to a person
who finds the lawyer through the directory. Directories can be
searched by using the name of a lawyer. A closer parallel to the
internet service here under consideration is a search within an
internet legal directory conducted by geographic location and
legal practice area. Typically, a lawyer listed in an internet
directory provides the locations where he practices and selects,
from a pre-defined list, those legal practice areas in which he
wants to be identified. A person using the internet legal directory
searches for a lawyer by specifying a geographic location and
selecting a legal practice area from a specific list. The results
of the search are automatically determined by a computer based
on geographic location and legal practice area as input by the
person using the directory. Internet legal directories generally
accept an unlimited number of lawyers provided that they are properly
licensed to practice law. Other criteria can be applied by a
directory as a qualification for listing, for example holding
board certification. In addition, some make and communicate ratings
for lawyers in the directory. In an internet directory, the search
results will include all lawyers corresponding to the selected
criteria without limitation or elimination. However, the search
results may be ordered or prioritized based on various criteria,
including in some cases the relative amounts of fees paid to the
directory by the participating lawyers. Because internet directories
are seen by their users as electronic versions of telephone directories,
users can be assumed to understand that a directory is not recommending
the lawyers
listed in the directory.
Under the standards outlined above,
the Committee believes that an internet service such as the Service
would be an advertising or public relations service permissible
for Texas lawyers under the Texas Disciplinary Rules of Professional
Conduct rather than a prohibited referral service, provided that
the following requirements are met:
- The selection of lawyers for
a potential client identified in response to the potential client's
information is a wholly automated process performed by computers,
without exercise of any discretion, based on the information
provided by the potential client and the information provided
by participating lawyers.
- The Service takes sufficient
steps to ensure that a reasonable potential client understands
(a) that only lawyers who have paid a fee to be included in
the Service will be given the opportunity to respond to the
potential client and (b) that the Service makes no assertions
about the quality of the lawyers included in the Service. The
Service must not state that it is making referrals of lawyers
or describe itself in such a way that would cause a reasonable
potential client to believe the Service is selecting, referring
and recommending the participating lawyers. The Service must
ensure that a reasonable potential client either understands
that the Service is open
to all licensed lawyers or, if there are limits on the number
of qualifications of lawyers who participate in the Service,
understands the nature of those limits.
- The fee charged by the Service
is a reasonable fee for the advertising and public relations
services provided. See Rule 7.03(b).
- The Service does not unreasonably
limit or restrict, either directly or by means of a high fee
structure, finely drawn geographic areas and legal practice
areas, or otherwise, the number of lawyers it allows to participate
for a given geographic area or legal practice are to such an
extent that the Service in effect is referring
particular types of potential clients to particular lawyers.
- Every initial communication
sent by the lawyer to a potential client that is identified
through the Service is advertising information sent by electronic
means and clearly states that the communication to the potential
client consists of advertising information, that the communication
is being sent after identification of the client through the
Service based on geographic area and legal practice area, and
that the lawyer has paid a fee to participate in the Service.
- A lawyer does not communicate
in person, by telephone, or by other electronic means involving
live, interactive communication with a potential client identified
through the Service unless and until the prospective client
has requested such communication. See Rule 7.03(a).
In order to comply with the Texas
Disciplinary Rules of Professional Conduct, a Texas lawyer wishing
to participate in the Service must take reasonable steps to determine
whether the Service meets requirements 1 through 4 specified above.
In addition, a Texas lawyer who has investigated and determined
that the requirements outlined
above are met in the operation of the Service will have a continuing
responsibility to monitor the operations of the Service to ensure
that it continues to meet these requirements. Finally, a lawyer
wishing to use the Service must ensure that communications on
the lawyer's behalf of advertising information to potential clients
identified through the Service comply with requirements 5 and
6 above as well as more generally with the requirements of Rules
7.01 through 7.07 concerning provision of information with respect
to legal services.
CONCLUSION
Under the Texas Disciplinary Rules
of Professional Conduct, a lawyer must pay a fee to participate
in an internet client-lawyer connection service of the type described
in this opinion provided that the requirements specified in this
opinion are met.
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