“Call to see if you have a case!”
“Check your eligibility for compensation NOW!”
“Thirty seconds is all it takes to see if you qualify.”
“Get a free case review from a trusted lawyer.”
Generic online ads, and the legal lead generators or marketing companies often responsible for them, seem to be popping up everywhere. Specifically, in personal injury cases, their ads appear to be ubiquitous, and many lawyers believe if they don’t use these companies to market their services, they’ll be left behind. But not all lead generators are the same and not all play by the North Carolina ethics rules. If you do business with one that is not compliant with Rule 7.4, you could be paying the price.
If you’ve ever seen these types of generic online solicitations ads, you may have noticed that there is no identification on the ad of who is responsible for the content (as required for lawyer ads) and no indication whether the ad is from a marketing agency or a law firm. Sometimes a phone number is listed, inviting the public to call. In other ads, clicking on a button opens a questionnaire, which, if the individual answers in a certain way, sends them a message that an attorney will contact them to discuss their case. These advertising methods do not comply with the NC Rules of Professional Conduct.
Rule 7.4 provides guidance to lawyers who use “intermediary organizations” to connect with potential clients:
Rule 7.4 Intermediary Organizations
(a) An intermediary organization is a lawyer referral service, lawyer advertising cooperative, lawyer matching service, online marketing platform, or other similar organization that engages in referring consumers of legal services to lawyers or facilitating the creation of lawyer-client relationships between consumers of legal services and lawyers willing to provide assistance. A tribunal or similar government agency that appoints or assigns lawyers to represent parties before the tribunal or government agency is not an intermediary organization under this Rule.
(b) Before and while participating in an intermediary organization, the lawyer shall make reasonable efforts to ensure that the intermediary organization’s conduct complies with the professional obligations of the lawyer, including the following conditions:
(1) The intermediary organization does not direct or regulate the lawyer’s professional judgment in rendering legal services to the client;
(2) The intermediary organization, including its agents and employees, does not engage in improper solicitation pursuant to Rule 7.3;
(3) The intermediary organization makes the criteria for inclusion available to prospective clients, including any payment made or arranged by the lawyer(s) participating in the service and any fee charged to the client for use of the service, at the outset of the client’s interaction with the intermediary organization;
(4) The function of the referral arrangement between lawyer and intermediary organization is fully disclosed to the client at the outset of the client’s interaction with the lawyer;
(5) The intermediary organization does not require the lawyer to pay more than a reasonable sum representing a proportional share of the organization’s administrative and advertising costs, including sums paid in accordance with Rule 5.4(a)(6); and
(6) The intermediary organization is not owned or directed by the lawyer, a law firm with which the lawyer is associated, or a lawyer with whom the lawyer is associated in a firm.
(c) If a lawyer discovers an intermediary organization’s noncompliance with Rule 7.4(b)(1) – (6), the lawyer shall either withdraw from participation or seek to correct the noncompliance. If the intermediary organization fails to correct the noncompliance, the lawyer must withdraw from participation.
Yes, marketing companies or lead generating companies are intermediary organizations, as defined in this rule. As such, NC lawyers must confirm that these companies are compliant with all aspects of this rule before they agree to take leads from such companies. In particular, the ads described above do not comply with Rule 7.4(b)(3), which requires a measure of transparency and disclosure to the public. There is no way for the public to learn about the criteria for inclusion and fees lawyers pay at the outset of the public’s interaction with the intermediary organization through its advertising. The public does not even know the identity of the organization responsible for the ad before getting a call from the lawyer. It is also unclear whether the public is giving informed consent to being contacted by a lawyer.
Before agreeing to take leads from a marketing company, ask some questions:
- Are their ads branded, so that the client knows who is responsible for the ad?
- Is there any disclosure to the public about the marketing company, how lawyers are included, and any fees charged to lawyers?
- Does the company make ads available for prior review by the attorneys who would be receiving leads from the ad?
- What are the procedures used to send leads to attorneys? Is there a call center where the public is given information about the marketing company and how they are matched with a lawyer? Is the company obtaining informed consent for a lawyer to call them, and is the name of the law firm given to the potential client prior to the contact by the firm?
- Does the ad promise a case evaluation with no attorney involvement? (Big Red Flag!)
Under the ethics rules, transparency is key. In addition to compliance with all aspects of Rule 7.4, be sure a lead generator identifies itself as such in generic ads or through its online presence. Make sure there is disclosure about their business model available to the public that is easy to access. Check whether they allow you to review and edit ads used to send you leads before running them and reject any ads promising an online eligibility assessment or immediate case evaluation, before a lawyer is involved. Finally, if you initiate communication with the potential client as a result of one of these leads, it would be best if the lead generator obtains specific informed consent, confirmed in writing, from the potential clients before you reach out to them.
