MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2016-13

Whether a lawyer can pay a fee to an online legal directory for increased visibility throughout the website, including on other lawyers’ profile pages?

Question Presented

Whether a lawyer can pay a fee to an online legal directory for increased visibility throughout the website, including on other lawyers’ profile pages?

Summary Conclusion

The Committee finds that a lawyer’s participation in an online legal directory with a fee-based advertising model granting lawyers additional visibility on other lawyers’ profile pages is not barred under the Maryland Lawyers’ Rules of Professional Conduct (“the Rules”). The Committee expresses no opinion about any other aspect of an online directory or marketplace.

Background

Your inquiry concerns lawyer advertising and solicitation through an online legal directory that includes a profile page for each lawyer. The individual profiles are offered for free so long as the lawyer agrees to be available to answer questions posed by individual users. These individual lawyer profile pages may also advertise the information of other lawyers who practice in the same geographic and/or practice area. However, a lawyer may pay a fee to remove any unwanted advertisements from his or her profile page. Paying this fee also grants lawyers additional visibility throughout the website, which may include the lawyer’s profile appearing on a non-paying lawyer’s profile page. You ask whether this advertising model violates the Rules.

Discussion

A lawyer may pay reasonable advertising costs, the usual costs of a legal service plan, and for a law practice. See Md. R. Prof. Conduct 7.2(c)(1)-(3). A lawyer may also advertise with an organization, not owned or operated by the attorney, which uses personal contact to solicit persons who might be in need of legal services. See Md. R. Prof. Conduct 7.3, cmt 8. Advertisements may be through public media, including online, so long as the communication is not false or misleading and is not a prohibited solicitation. See Md. R. Prof. Conduct 7.1, 7.2, and 7.3(b).

All communication about the lawyer’s services must be truthful and neither misleading nor creating false expectations. Md. R. Prof. Conduct 7.1. The Rules permit the dissemination of information pertaining to the lawyer’s practice such as location, firm name, telephone number, and how attorney’s fees. Md. R. Prof. Conduct 7.2, cmt 2. Solicitation is prohibited when:

  1. the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing a lawyer;
  2. the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
  3. the solicitation involves coercion, duress, or harassment.

All advertisement must indicate the name of at least one lawyer responsible for its content and, if the advertisement indicates a contingency fee, the advertisement must describe who pays for expenses. Md. R. Prof. Conduct 7.2(d), (e). A lawyer is always personally responsible for the advertisement’s compliance with the Rules. Md. R. Prof. Conduct 7.2(f).

Your question focuses on the advertising model of the online legal directory and whether the paid versus unpaid model is a prohibited solicitation or “merely competitive advertising.” The Committee finds model itself, which offers heightened visibility on competing profile pages, is not per se prohibited. While the Committee has no facts describing the competing advertisements that may appear on another lawyer’s profile page, we take this opportunity to emphasize that communications about a lawyer’s services must be truthful, not misleading, and they must not create false expectations. Under Rule 7.2, a communication is false or misleading if it:

  1. contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
  2. is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers’ Rules of Professional Conduct or other law; or
  3. compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.

Although a lawyer’s advertisement may appear on a competitor’s profile page with an additional fee, we do not understand from the facts provided that a lawyer’s paid advertising makes a material misrepresentation or omission, creates an unjustified expectation, or makes any comparison between lawyers.

Regarding solicitations in the context of advertising, Maryland Rule 7.3(b) states as follows:

A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone, or real-time electronic contract even when not otherwise prohibited by paragraph (a), if:

  1. the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing a lawyer;
  2. the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
  3. the solicitation involves coercion, duress, or harassment

Here, the Committee also finds no per se violation under the Rules because, as we understand it, prospective clients are users who search the legal directory and the service does not appear to involve direct action on the part of the lawyer.1 Based on our understanding of the facts, neither the service nor lawyers using the service, directly solicit individuals who are in need of legal services. Individuals access the website seeking legal services and lawyers are permitted to speak with them when requested by the individual. Thus, while the fee allows the lawyer additional visibility on the platform, the lawyer has still has no ability to target individuals or initiate contact.

The Committee notes that the online legal advertising model may raise additional concerns under the Rules. For example, in at least two prior opinions analyzing online legal directories, the Committee examined Rule 5.4 and its prohibition against sharing fees with non-lawyers. See Ethics Docket 2004-21 (finding the Rules would prohibit a proposed web-based legal directory in which participating lawyers would only pay a fee when actually retained by a client who learned of the lawyer through the directory); see also Ethics Docket 2007-1 (finding acceptable under the Rules a proposed legal directory allowing attorneys to “apply” for a listing providing users online access and the ability to search and select an attorney without assistance). Additionally, while your question does not reference other potential aspects of this online legal directory, the Committee believes caution is warranted. Some online directories include testimonials, ratings, or peer reviews, which would also implicate Rules 7.1 through 7.5. The Comments to Rule 7.1 state that “advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts, and advertisements containing client endorsements” are precluded. See also Ethics Opinion 1991-16 (founding improper under the Rules legal advertisements containing client testimonials describing the legal problem for which the lawyer provided representation, the work performed, and the results obtained).

Conclusion

An online legal directory and advertising model allowing the different levels of visibility described does not per se violate the Rules so long as the advertisements are truthful, not misleading, and creat e no false expectations. Additionally, there is no direct solicitation of business and the paid level advertisement is not tied to successful referrals. Nevertheless, lawyers who advertise on an online directory remain responsible for ensuring that their profiles and advertisements adhere to the Rules and the Committee expresses no opinion beyond the specific question presented.

1 A problem could arise, however, in the context of the question and answer part of the described service and a lawyer should exercise caution and ensure the communication complies with Rules 7.1 through 7.5.