LegalMatch Marketing for Attorneys

Advancing The Objectives Of Legal Ethics.

Participating in the LegalMatch System Does Not Violate the Rule Against Direct Solicitation and Related Rules; To the Contrary, the LegalMatch System Actually Advances the Objectives of the Ethics Regulations More Effectively Than Any Other System.

Participating in the LegalMatch system does not violate the rule against solicitation and related rules. Under the ABA Model Rules, and the different permutations as enacted by the various states, Rule 7.3 or some form of it, contains various prohibitions on in-person, live telephone, or written communications with members of the public.

These rules follow the same structure and theme, and usually include the same basic requirements and prohibitions:

(a) In-person or live telephone solicitation is prohibited with people who are not actively seeking an attorney (this usually prevents the attorney from undertaking mass mailings and “targeting” certain groups of people who would likely need an attorney and unilaterally asking them to retain the attorney);

(b) The use of coercion, duress, harassment, compulsion, intimidation or threats to assist the attorney in obtaining employment is prohibited;

(c) Any advertising or solicitation material is usually required to contain the words “Advertising Material”; and

(d) Such rules may require that a copy of any such written or recorded communication be kept for some period of time.

The LegalMatch system and approach actively furthers the goals and objectives of the Rules of Professional Conduct for a variety of reasons:

∑ First, because the initial exchanges between the attorney and the prospective client are in writing, there is no in-person or live telephone solicitation.

∑ Second, because the initial exchanges are in writing, and can be preserved, it is fairly straightforward to demonstrate that no coercion, duress, or intimidation was used to encourage the client to engage the attorney. The factual basis and the motivation of the client for seeking legal services have been clearly set forth in the client’s own words. Furthermore, the client can take as much time as they desire to review all of the different offers that they receive in the comfort of their own home or office, conduct any research they want, all before ever contacting the attorneys to speak with them by phone or meet with them. The client is always in control of which attorneys, if any, they want to contact and retain as their lawyer.

∑ Third, again because the communications are in writing, and can be preserved for future reference, the attorney can demonstrate that they did not make any misrepresentations about themselves or their practice.

∑ Fourth, LegalMatch consumers are actively seeking a lawyer in a certain general location and practice of law. The consumer has initiated the request for information by filling out an on-line questionnaire, describing their case, and has then submitted their case to the system, and has thereby requested in writing that attorney members make proposals to them. The attorney can therefore demonstrate that the client initiated the contact, and can demonstrate (in the client’s own words) why the client was looking for an attorney. This can be used to show that the attorney’s communication was not uninvited, which is important because then the attorney’s communication does not constitute a solicitation (discussed further below).

∑ Fifth, the only attorney advertising that occurs is by way of the attorney’s own on-line written response to a client’s Case Summary, which includes the Attorney Profile, contact information and other related biographical data. All of this information is controlled by the attorney, and all of it is clearly marked in large red letters “Advertising Material.” Consequently, each member attorney has complete control over each and every one of their “advertisements.” They have the ability to ensure that each such communication complies with all of their Rules of Professional Conduct, and they can print out and save a copy of both the client’s Case Summary and their own response, for safe-keeping (to comply with their state’s requirements, if such requirement exists) and for demonstrating later what led to the engagement.

∑ Sixth, the LegalMatch system includes a client comment board feature, which allows clients to post reviews of their experience with an attorney. Over time, this collection of comments becomes a powerful means of providing future clients with a better understanding of an attorney’s professionalism and workmanship. In addition, it acts as a deterrent, and attorneys tend to ensure that LegalMatch clients receive good service.

∑ Seventh, the LegalMatch program provides a client satisfaction guarantee, which provides further assurance that LegalMatch clients will be protected. As acknowledged by the North Carolina Formal Opinion 2004-1:
“Inquiry #2:

The company provides a satisfaction guarantee. If a dispute arises between the client and a lawyer engaged through the on-line service, a customer services representative from the company will try to resolve the problem. If this fails, the client and the lawyer will be directed to voluntary arbitration. If an arbitration judgment is awarded to the client, the company will pay up to $1000 ($5000 for priority service cases) to the client if the lawyer fails to pay.
Rule 1.5(f) requires a lawyer who has a fee dispute with a client to participate in the State Bar's program of fee dispute resolution. How does the guarantee relate to this requirement?

Opinion #2:

The guarantee may not interfere with a lawyer's compliance with the requirements of Rule 1.5(f) to notify a client of the State Bar's fee dispute resolution program and, if the client so requests, to participate in good faith. If the company's guarantee provides a duplicative dispute resolution procedure, it is only beneficial for clients.” Emphasis added.

The LegalMatch system, as a whole, has been designed to empower the most under-served portion of the population: the middle sector, while, at the same time, protecting this same populace in the manner envisioned by the prevailing ethics regulations.

Fair and Balanced Legal Matching Services.

The LegalMatch System is Not a Pre-Paid Legal Plan

The LegalMatch system is not a pre-paid legal plan. A typical pre-paid legal plan is actually an insurance policy, regulated by the insurance commissioner of each state. The consumer members of the plan pay a premium to be covered by the plan, and, if they need an attorney, the plan pays the attorney’s fees. LegalMatch is not an insurance company and does not collect any premiums from its consumer users; for that matter, consumers do not pay for using the LegalMatch service, unless they opt for priority or real-time service.

Investing in a LegalMatch Membership Does Not Violate the Rule Against Giving Anything of Value for Recommending an Attorney’s Services.

Paying the membership fee to join LegalMatch does not violate the rule against attorneys giving something of value for recommending the attorney’s services. Most jurisdictions’ ethics rules are based upon the ABA Model Rules, and typically have the same naming and numbering convention. In particular, Rule 7.2 or some form of it, usually prohibits an attorney from “giving anything of value to another for recommending the lawyer’s services . . .”

A lawyer referral service, for example, recommends the lawyer’s services by picking the attorney’s name from the rotation list and providing the name, telephone number and address to the caller. LegalMatch never recommends a specific lawyer’s services and never provides anyone with the name or contact information of a member attorney. To the contrary, LegalMatch simply advertises that prospective clients can present their case anonymously and confidentially. It is then up to the member attorneys to respond directly to the prospective clients with whom they are interested in working, and for the member attorneys to provide the prospective client with their contact information.

For example, the North Carolina State Bar Ethics Committee held, in Formal Opinion 2004-1, that:

“Nevertheless, the company's on-line service is not strictly a referral service and failure to meet all of conditions set forth in Rule 7.2(d) should not prohibit a lawyer from participating. Unlike the passive recipient of a referral from a lawyer referral service, a user of the company's website must evaluate the information and offers he receives from potentially suitable lawyers and decide for himself which lawyer to contact. Thus, the potential harm to the consumer of a pure lawyer referral service is avoided because the company does not decide which lawyer is right for the client.” Emphasis added.

Because LegalMatch does not recommend the services of any specific attorney (rather, it is each member attorney that makes the initial and only communication regarding the attorney’s background or practice), the attorney is not giving anything of value to LegalMatch for recommending the attorney’s services.

Good Bye, Yellow Brick Road.

The LegalMatch System is Not a Lawyer Referral Service

The LegalMatch program does not place any member attorney’s name or contact information into the public view. No member of the public has the ability to view or otherwise obtain any LegalMatch member attorney’s name or contact information. Such information is confidential and not provided to any member of the public. [However, once a prospective consumer has agreed to the Client User Agreement, and has completed the on-line case questionnaire, attorneys then respond to the client’s request, and only then does that consumer receive the name and contact information of those attorneys who actually respond.]

Directory and “yellow page” listing services provide written lists of the names, telephone numbers, addresses, (and, occasionally, other biographical information about the attorney or firm) for the public to access. Many such publications and directories either group, or allow the public to search, attorneys and firms by geographic territory and by practice area. It is up to the consumer to then contact each of the attorneys or firms, and speak with them regarding their matter.

Moreover, LegalMatch conducts a thorough interview of each attorney, along with a background and disciplinary check, all of which is then submitted to the Executive Review Committee of LegalMatch for final determination of whether or not the attorney may join LegalMatch. Directory and other such listing services do not conduct any such pre-screening of their attorneys.

North Carolina In My Mind.

Online Legal Matching Systems Are Not a Lawyer Referral Service.

A “lawyer referral service” or a “lawyer referral program” is a well-defined system that is used extensively throughout the country by state and local bar organizations. In addition, the ABA Model Rules identify and describe ideal lawyer referral program attributes, and sets forth certain criteria that lawyer referral programs should meet.

A lawyer referral program typically receives call-ins from the public, seeking legal help. The answering personnel (“operator”) speak directly with the individual and form an opinion about what type of legal assistance is needed. About a third of the callers need help from a state or federal agency, or from a legal aid clinic or other pro bono program, and are directed accordingly. The other callers pay a fee (usually between $25 and $50) and are given the name of the next attorney on the rotational list who are identified as practicing in the area of law that the operator believes may be appropriate.

The caller is then obliged to call the attorney and make an appointment. At the appointment, the attorney and caller then spend time determining whether or not the caller has a case, and whether the attorney is the right attorney. If the caller does not engage the attorney, the caller then has to call the referral service again, and get the name of the next attorney in rotation. This inefficient and time-consuming process repeats itself until the caller finds an attorney to engage.

The attorneys who belong to the lawyer referral program pay an annual membership fee of between $50 and $400, and also may pay a fee to the lawyer referral service on fees they earn from the clients referred to them through the service. This “referral fee” is usually between 10% and 20% of all fees paid by the client to the lawyer.

Online legal matching services like LegalMatch do not refer its attorney members to its consumers; rather, the consumers invite attorney responses by presenting their case through an online questionnaire, and the attorneys respond directly to those prospective clients with whom they are sincerely interested in working.

In a recent formal opinion, the North Carolina State Bar Ethics Committee held specifically that the LegalMatch system is not a lawyer referral service. (See, North Carolina Formal Ethics Opinion 2004-1). Although the Opinion does not mention LegalMatch by name, we understand that it originated under a request about LegalMatch, and it accurately describes how LegalMatch operates.

The 70% Solution.

The Problem of Reaching the Middle Sector of the Population

Lawyer referral programs have been in existence for years, and represent probably the best solution to connect clients with lawyers in an industrial-age economy, which was based primarily on paper and the use of the telephone. In the time since 1977, lawyer advertising has eroded the effectiveness of lawyer referral services. For example, both the Tennessee State Bar and the Colorado State Bar had lawyer referral programs, but dismantled them in the 1980’s because of competition from lawyer advertising.

However, thirty years of lawyer advertising has not adequately solved the problem, as that problem was identified in a dissent in Bates v. State Bar of Arizona (1977) 433 U.S. 350, 402-403:

“The problem of bringing clients and lawyers together on a mutually fair basis, consistent with the public interest, is as old as the profession itself. It is one of considerable complexity, especially in view of the constantly evolving nature of the need for legal services. The problem has not been resolved with complete satisfaction despite diligent and thoughtful efforts by the organized bar and others over a period of many years, and there is no reason to believe that today's best answers will be responsive to future needs.” Emphasis added.

So, even though the ban was lifted on attorney advertising, it is still a wide-spread problem that the middle group of the population is restricted in finding competent counsel. On the one hand, the lowest income bracket can access a number of different programs designed to subsidize their legal needs (pro bono programs and legal aid clinics, among others). On the other hand, the highest income bracket usually has the education and resources to locate and retain effective counsel.

While advertising since 1977 has helped make inroads into this middle group of the population, the very factors that drove the Bates decision are still prevalent today:

“As the bar acknowledges, ‘the middle 70% of our population is not being reached or served adequately by the legal profession.’ ABA, Revised Handbook on Prepaid Legal Services 2 (1972). Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. Advertising can help to solve this acknowledged problem: Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar's obligation to ‘facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.’ ABA Code of Professional Responsibility EC 2-1 (1976).” Bates v. State Bar of Arizona (1977) 433 U.S. 350, 376-377. Emphasis added.

Because of the history of lawyer advertising, and the restrictions on regulating commercial free speech, there has emerged a two-tier system of ethical regulation: The first tier is composed of a set of “general” rules that apply to all forms of attorney advertising and solicitation. The second tier is composed of additional rules designed to regulate specific advertising vehicles that have arisen over the years to connect clients with lawyers.

The four primary vehicles of regulated lawyer advertising are:

(1) Lawyer referral programs;
(2) Pre-paid legal services plans;
(3) Joint or cooperative legal advertising; and
(4) Directory or yellow page listing services

Dear Jurisprudence:

The New Rules Of Engagement

To address the current framework of rules that govern attorneys’ ability to attract and to enter into engagements with clients, it is necessary to understand the history and background of the regulation of attorney advertising. Against this backdrop, the purpose and reasoning of the current framework of rules can be better understood, and the benefits of online legal matching methods can be better appreciated.

In short, attorney advertising is a form of commercial free speech that is not only protected by the US Constitution, but which is necessary to fulfill the obligation of the legal profession to reach the middle sector of the population with the information that they need to select and retain competent legal counsel.

The primary limitations on attorney advertising are found in the ethics rules promulgated by the state government through the court branch, and which are designed to protect unsophisticated consumers from sophisticated over-reaching by lawyers motivated by pecuniary gain.

It is the heat from these two competing considerations that has forged the current framework of ethics regulations that govern attorney advertising; however, no free market-based solution has arisen (until LegalMatch) that has proven it can successfully reach the middle sector of the population, while sufficiently protecting the consumer. Online legal matching systems are not only ethical, they are a long-overdue solution to a difficult problem that has plagued the legal industry for centuries.

LegalMatch (www.legalmatch.com) is the pioneer of the online legal matching methodology and by far the biggest online legal matching service in the U.S.

Good “history of attorney advertising” citing is found in a White Paper presented by the American Bar Association in July 1998, entitled, “A Re-Examination of the ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies”.

A summary of a portion of this white paper follows:

Lawyer advertising and solicitation were common and generally lawful in the Nineteenth Century. In 1908, the American Bar Association (“ABA”) adopted the first national standards for ethical conduct governing lawyers, entitled the Canons of Professional Ethics. Canon 27 banned lawyer advertising, permitting nothing more than business cards. Solicitation was also banned. The bans, along with the other provisions of the Canons, were generally adopted by the highest courts of the individual states, becoming effective and thereby controlling the conduct of lawyers. While directory listings and very limited advertising became acceptable over time, the bans continued for nearly seventy years.

In 1977, the U.S. Supreme Court ruled, in Bates v. State Bar of Arizona (1977) 433 U.S. 350, that it was unconstitutional for states to impose bans on lawyer advertising, inasmuch as the First Amendment-based doctrine of commercial free speech prevented the government from prohibiting such communication. The Court found that states had the right to impose regulations and, indeed, had the obligation to do so to the extent it was necessary to protect consumers. However, the persistent problem that the middle 70% of the population were not locating competent counsel actually created an obligation for the legal profession to reach out and educate, and the state bar organizations, as an agent of the supreme court of each state, had an obligation to foster such communication and education, and could not ban it.

It then became the responsibility of the bar organizations to set new standards governing the rights of lawyers to advertise. Within six weeks of the Bates decision, the ABA had adopted a set of regulations and amended the Model Code of Professional Responsibility, which had replaced the Canons in 1969. The initial code provisions precluded television advertising, targeted mail solicitation and any advertising not done in a dignified manner. (For various reasons, none of these delineated media limitations continue to exist today.) Notably, the ABA retained the ban on in-person solicitation. In 1978, the U.S. Supreme Court found the ban on in-person solicitation to be a constitutional limit on commercial speech, indicating that lawyers are trained in the art of persuasion and that clients in need of legal services may be emotionally vulnerable to that persuasion.

In 1983, at a time when many states were still in the process of formulating rules to govern lawyer advertising, the ABA completely revamped its rules of ethics. The Model Rules of Professional Conduct replaced the Model Code as the national standards which states were urged to adopt. The Model Rules departed from the Code in format and substance. Instead of the Code's two-tiered ethical considerations (EC's) and disciplinary rules (DR's), the Model Rules had one set of standards. The Rules are similar to the DR's in that they set the floor of minimally acceptable conduct. Any action falling below the standards set in the Rules subjects the lawyer to discipline. Since 1983, forty-one states have adopted the Model Rules.

For a variety of reasons, all states have some features of the provisions in the Model Rules that govern lawyer advertising and solicitation, but few states have the complete provisions verbatim.

But there's still a gap in reaching the majority of the population – the middle 70% - and properly connnecting them to the appropriate attorney’s.

Solving this problem has proven to be much more difficult in practice than in theory.

Stay tuned for the next installment as we evaluate this divide and consider what to do about it.

The First Thing We Do, Let's Thrill All The Lawyers.

Welcome to LegalMatch - Online Omnibus
The New Methodology For Legal Marketing

Our mission is posting timely, relevant and visionary thinking about new marketing methodologies and the evolving communications challenges that exist between consumers and lawyers and the booming online legal market place.

The profession of practicing law has a complicated history as it relates to marketing and advertising and it has a somewhat confusing set of issues that uniquely defines it.

Two key phenomena predominate:

1. The term "legal marketing" nearly reaches oxymoron status. In spite of First Amendment guarantees, lawyers are constrained by their bars and state government court branches from traditional marketing tactics because of their perceived superior skill in the art of persuasion and the undo influence they could exert over unsophisticated citizens for pecuniary gain. On the other hand, these same ruling bodies mandate that attorneys are required to make available legal information and legal resources as part of their advocacy of the legal process and the rule of law.

No, they’re not allowed. Yes, they must.

It’s a conundrum that has spawned unusual and ineffective legal marketing strategies.

2. Consumers have a love/hate relationship with the legal profession. It’s a strange obsession that's plainly apparent in popular culture - television shows about lawyers, movies about lawyers, books about lawyers - it goes on. But there is mistrust and confusion about the law and the true intent of lawyers who appear at times to profit at the expense, the pain and the despair of others. The verdict against lawyers isn’t unanimous, but many consumers would convict them of killing personal freedom with the red tape of statutes, regulations, and fine print.

Obviously, a communications problem exists and it is even more problematic when it comes to the typcial consumer dilemma of retainng the right attorney in a time of need. Little expertise exists in knowing who to contact or even in knowing which type of specialization is appropriate for a particular situation.

Conversely, the same is true for lawyers. With the constraints that are imposed on them, lawyers have inordinate trouble making themselves available at the right time to the people who need them most.

Fortunately, the nature of legal marketing is changing - and changing for the better for both consumers and attorneys. A unique online method methodology for matching consumer cases with the right local attorney is beginning to impact the legal market place at a level that was not thought possible just several years ago.

Matching consumers with the right attorneys is the business of LegalMatch. This blog is dedicated to explaining the methodology and the underlying mechanics that provides the substrate for this new matching methodology.

In order to best understand what legal matching process is and how it will impact your practice it is necessary to establish some background and history on the complicated saga of legal marketing.

More on that next post.