LegalMatch Marketing for Attorneys

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.