A lawyer may ethically participate in an Internet-based group advertising program that limits participation to a single lawyer for each ZIP code from which prospective clients may come, provided that the service fully and accurately discloses its advertising nature and, specifically, that each lawyer has paid to be the sole lawyer listed in a particular ZIP code. To remain a permissible group advertising program, such a service may do nothing more to match clients with lawyers than to provide inquiring clients with the name and contact information of participating lawyers, without communicating any substantive endorsement. The service will lose the protection afforded by the required disclosures and cross the line that distinguishes permissible advertising from an impermissible for-profit referral service if the required disclosures are difficult to find, read, or understand; are contradicted by other messages on the website; or are made so late in the process that the consumer of legal services is unlikely to read them before contacting participating lawyers.
A lawyer also may ethically participate in Internet advertising on a pay-per-click basis in which the advertising charge is based on the number of consumers who request information or otherwise respond to the lawyer’s advertisement, provided that the advertising charge is not based on the amount of fees ultimately paid by any clients who actually engage the lawyer.
In anticipation of the formal release of this opinion, the Maricopa County Bar Association (MCBA) petitioned the Arizona Supreme Court to change, on an emergency basis, ERs 5.4 and 7.2 to resolve the problems this opinion identifies. The Court granted that request and adopted the MCBA’s proposed rule changes on an emergency basis, effective April 6, 2010. The Court then adopted the changes permanently, effective September 2, 2010. As a result of the rule-change petition and Court’s order, the rules now in effect are different from the rules at issue in this opinion.
A lawyer may not ethically participate in a not-for-profit lawyer referral service if, as a condition of such participation, the lawyer is required to pay the service a percentage of the fees earned on the case.
An online service that matches prospective clients with potential lawyers based on the appropriate geographic and practice areas, makes representations about the qualifications of its member lawyers, and provides a monetary satisfaction guarantee, is a “lawyer referral service” within the meaning of ER 7.2(b). Unless the service is a non-profit service or is approved by an appropriate regulatory authority, Arizona attorneys may not pay a fee to participate.
A lawyer may not pay to participate in the for-profit client/attorney internet matching service described in this opinion (referred to hereinafter as “the Service”) because the Service substantially functions as, and holds itself out as, a referral service and because the information presented by the Service on behalf of participating lawyers is materially misleading.
Under ER 5.7, adopted in December 2003, a lawyer who operates a separate investment advisory business may refer non-clients to an investment advisory firm that pays a referral fee to the lawyer, so long as the lawyer takes reasonable steps to assure that the non-clients understand they are not receiving legal services and they do not have the protections of a lawyer-client relationship. A lawyer who provides such services to former clients must also comply with the confidentiality requirements and other obligations under ER 1.9, and should take particular care to assure that the former clients understand they do not have a lawyer-client relationship with respect to the investment transactions. A lawyer may not refer a current client to such a program, however, unless the lawyer meets the "heavy burden" of showing compliance with ER 1.7 and 1.8(a). Also, a lawyer who provides investment advisory services must satisfy ERs 7.1 through 7.3 and maintain separation between the law practice and the lawyer's investment advisory business so that they do not appear to be related.
To the extent previous Arizona ethics opinion 98-09 is inconsistent with ER 5.7 and the analysis in this opinion, the earlier opinion is no longer effective.
A dissenting opinion issued contemporaneously by the committee, recommends a per se ban against lawyers accepting money from third-party professionals in exchange for referring law clients to those third-party payors. However, like the majority, we agree that a lawyer can accept a fee from a third-party professional for referring non-clients to the third-party's firm, provided that the lawyer complies with Rule 5.7.
An attorney who is on inactive status and not practicing law must comply with the Rules of Professional Conduct. An inactive attorney may pay a referral fee to a third party so long as the fee is not related to legal services and does not constitute sharing of legal fees. An inactive attorney may not, however, pay the referral fee to a practicing attorney.
Arizona, unlike some other states, does not allow a lawyer to be paid a fee merely for recommending another lawyer or referring a case. Instead, Arizona allows "referral fees" only in the sense that lawyers who are not in the same firm may divide a fee as provided in ER.1.5(e). That rule allows lawyers to divide a single billing to a client if three conditions are met: (1) each lawyer receiving any portion of the fee assumes joint responsibility for the representation: (2) the client agrees, in a signed writing, to the participation of all the lawyers involved: and (3) the total fee is reasonable. "Joint responsibility" requires, at the least, that the referring attorney accept vicarious liability for any malpractice that occurs in the representation. Although the client must consent to the respective roles of the lawyers in the ongoing representation, ER 1.5(e) does not require that the client consent to the particular division of the total fee among the lawyers.
The referral fee that does not satisfy ER 1.5(e) violates ER 7.2(b), which generally prohibits lawyers from paying others for channeling professional work. ER 7.2(b) is not violated, however, by a lawyer giving or receiving a "de minimis" gift that is not a "quid pro quo" for another lawyers referring a particular client.
This opinion discusses several ethical issues with respect to lawyers using the Internet to communicate including, for example, confidentiality concerns when sending email to a client, advertising considerations for websites and the applicability of Arizona's Rules of Professional Conduct to communications disseminated from or received in Arizona [ERs 1.6, 1.7, 5.5, 7.1, 7.2, 7.3, 7.4, 7.5]
Personal injury lawyer wishes to obtain customer lists from his company/client, so he can send solicitation letters to the customers.
Committee discusses guidelines for attorneys participating in seminars sponsored by the Speakers' Bureau of the State Bar.
Sole practitioner proposes to turn over his law practice to a law firm while he goes on a one-year leave of absence. Discussion of whether a law practice has a salable goodwill. (Invalidated by Op. 06-01)
Under facts presented, ethically proper for an attorney to be listed in a labor union's "preferred provider guide", to offer a discount rate, and to give seminar presentations to union members.
Attorney ending his association with a law firm may send letters to clients he worked with while at the firm, notifying clients of his departure and stating that they are free to choose whether to remain with the firm or to retain him.
Law firm may mail to members of public a vinyl wallet embossed with law firm's name intended to hold checklist describing what a person should do after being involved in an automobile accident.
Attorney may join and participate in "professional networking group" but may not set up booth at group-sponsored "business exposition."
Dual representation of workers' compensation carrier and injured workers in prosecution of third party claim; soliciting professional employment from workers on request of carrier.
Law firm brochure mailed to select group of non-client businesses; publicizing the availability of firm members to speak before such groups; using the services of Welcome Wagonto distribute firm's brochures.
Announcement letter of attorney who is counsel to governmental agency upon leaving his position to enter private practice.
Participation in "Bankruptcy Attorneys Trust", a nationwide cooperative television advertising service; misleading title of the service.
Law firm's bi-monthly publication on the subject of Arizona construction law mailed to companies and individuals engaged in construction and construction related activities.
Lawyer publishing and sending professional announcement to other lawyers, present or former clients, friends and relatives.
Guidelines for accepting credit cards for payment of legal fees and retainers.
Lawyer using the slogan "We take the pain out of accidents."
Law firm sponsoring legal seminars for clients and non-clients, and mailing brochures to publicize the seminars.
Attorney participating with nonlawyer financial planner in presenting seminars for general public on financial planning, estate planning, and probate problems.
Attorney using direct mailing to contact individuals with known legal problems, to inform them that they may have causes of action.
Attorney's proposed newspaper advertising seeking representative plaintiff to challenge constitutionality of city's parking ordinance.