The Ethics Committee is currently considering two inquiries on Internet based pay-per-lead or pay-per-click services. Less than 10 years ago, these inquiries would not have even made it to the Ethics Committee, as staff counsel likely would have opined that these services violate Rule 7.2(d), which prohibits giving anything of value in exchange for a referral. On its face, the Rule seems to prohibit the pay-per-lead payment structure. The idea is that these marketing companies set up a website whereby potential clients can review legal articles, post legal questions, and complete a case evaluation for review by participating lawyers. Lawyers must sign up with the website before they can view information from potential clients. If the lawyer is interested in offering services to the potential client, he must pay to receive this lead, which includes the potential client’s contact information. More than one lawyer may provide any potential client with an offer for services. This seems like a boon for the website marketing company. In any case, the website makes clear it is a lawyer advertising vehicle, makes no representation about the quality of the lawyers participating, and lists the participating lawyer profiles on the site.
The issue here is one of payment. Lawyers have been permitted to participate in an on-line directory service, or on-line legal matching services, so long as the lawyer is only paying reasonable cost of advertising and administration of the service, which may include a set monthly fee and/or a yearly registration payment. Is the pay-per-lead structure really that different? Perhaps this is the reasonable cost of advertising spread out per use of the website’s services. The Ethics Committee is also reviewing the pay-per-click structure, whereby the attorney pays a fee based on the number of “hits” on his website link which appears on the marketing company’s website.
What is clear is that the way attorneys advertise or market their services via the Internet is rapidly changing. Consumers want a fast and convenient way of locating an attorney, and a fast and easy way to have legal services delivered to them. Inasmuch as the Ethics Committee is taking a close look at this issue, I believe there is the understanding that interpretation of the Rules of Professional Conduct, with respect to attorney advertising, must evolve as well.
We may have a proposed opinion on this issue after the July 2012 Ethics Committee meeting. Stay tuned.