Ethics issues associated with marketing and delivering legal services online

1. WORKING THE WEB:
DELIVERING LEGAL SERVICES
ONLINE
by Josh King
Avvo, Inc.

2. Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @joshuamking
Email: josh@avvo.com
Introduction

3. Overview
• Social Media as Advertising
• Performance-based Advertising
• Online “Deals”
• Unbundled Legal Services
• Cloud Considerations
• Conclusion and Q&A

4. Social Media as Advertising

5. Social Media is About Sharing

6. ABA Model Rule 7.1
• A lawyer shall not make a false or
misleading communication about the
lawyer or the lawyer's services. A
communication is false or misleading if it
contains a material misrepresentation of
fact or law, or omits a fact necessary to
make the statement considered as a
whole not materially misleading.

7. How Not To Use Social Media

8. Social
Social Media Is Not a Billboard

9. Illustration: CA Ethics Opinion

10. Performance-Based Advertising

11. ABA Model Rule 5.4
(a) A lawyer or law firm shall not share legal
fees with a nonlawyer . . .
(c) A lawyer shall not permit a person who
recommends, employs, or pays the lawyer
to render legal services for another to
direct or regulate the lawyer's professional
judgment in rendering such legal services.

12. ABA Model Rule 7.2
(a)Subject to the requirements of Rules 7.1 and
7.3, a lawyer may advertise services through
written, recorded or electronic
communication, including public media.
(b)A lawyer shall not give anything of value to a
person for recommending the lawyer's
services except that a lawyer may
(1)pay the reasonable costs of advertisements or
communications permitted by this Rule;
(2)pay the usual charges of a legal service plan or a not-for-
profit or qualified lawyer referral service. A qualified lawyer
referral service is a lawyer referral service that has been
approved by an appropriate regulatory authority

13. Zelotes v. Total Attorneys Cases

14. Comment to Rule 7.2
“Moreover, a lawyer may pay others for generating
client leads, such as Internet-based client leads, as
long as the lead generator does not recommend the
lawyer, any payment to the lead generator is
consistent with Rules 1.5(e) (division of fees) and 5.4
(professional independence of the lawyer), and the
lead generator’s communications are consistent with
Rule 7.1 (communications concerning a lawyer’s
services).
To comply with Rule 7.1, a lawyer must not pay a lead
generator that states, implies, or creates a reasonable
impression that it is recommending the lawyer, is
making the referral without payment from the lawyer,
or has analyzed a person’s legal problems when
determining which lawyer should receive the referral.”

15. Competitive Keyword Ads

16. Organic Results
Sponsored Listing

17. Online “Deals”

19. Groupon for Legal Services?

20. Issues Raised By Bars
– Is the fee split a reasonable cost of advertising?
– Does it violate prohibition on splitting fees with
non-lawyers?
– How to comply with trust account rules?
– Is creation of attorney-client relationship being
delegated?
– Could this be an excessive fee?
– How to deal with refunds?
• Where service isn’t appropriate for client
• Where lawyer isn’t competent to provide service
– Conflict Issues
– What of duties of competence and diligence?

22. Compliant Online Sales Would Include:
• An appropriate offer that the attorney is competent to
provide
• Adequate disclosures
• Deposit of funds into client trust account
– (advance payment or earned retainer? Depends on state)
• A refund mechanism – and readiness to refund the
whole thing
• Some assurance that the fee paid cannot be said to
interfere with the lawyer’s independent professional
judgment (i.e., there is no way the marketer can
control the legal services provided by the attorney)
• Treatment of purchasers as “prospective clients” under
ABA Model Rule 1.18

23. ABA Model Rule 1.18
(a) A person who consults with a lawyer about the
possibility of forming a client-lawyer relationship with
respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a
lawyer who has learned information from a prospective
client shall not use or reveal that information, except
as Rule 1.9 would permit with respect to information of
a former client.
(c) A lawyer subject to paragraph (b) shall not
represent a client with interests materially adverse to
those of a prospective client in the same or a
substantially related matter if the lawyer received
information from the prospective client that could be
significantly harmful to that person in the matter,
except as provided in paragraph (d).

24. Unbundled Legal Services

25. ABA Model Rule 1.2(c)
(c) A lawyer may limit the scope of the
representation if the limitation is
reasonable under the circumstances and
the client gives informed consent.

26. Limited Scope Representation
• Attorney handles discrete “chunks” of work
• Examples:
– Advice on form completion
– Coaching
– Drafting
– Court appearances
• States have rapidly started to adopt over last
10 years
• Opportunities abound for online/telephonic
services

27. Even full scope in some areas

29. Cloud Considerations

30. Software-as-a-Service (“SAAS”)

31. Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @joshuamking
Email: josh@avvo.com
Questions?
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