Connecticut Considers Rules That OK Clicking for Clients
Christian Nolan, Special to the Connecticut Law Tribune
The original Rules of Professional Conduct for lawyers date as far back as the late 1800s.
Suffice it to say there were no thoughts of the internet back then, much less Legalmatch.com or Shpoonkle.com.
But in an effort to catch up with the times, Michael P. Bowler, Connecticut's statewide bar counsel, proposed a revision to the Rules Committee of the Superior Court that would allow lawyers and law firms to make use of online services that recruit clients, so long as they strictly adhere to the rules governing attorney advertising.
The Rules Committee endorsed the measure last week. In the coming months, groups like the Connecticut Bar Association will discuss the rule change, the Rules Committee will hold a formal public hearing and the state's judges will vote on it in June.
Though many lawyers are just finding out about the proposal, early indications are this is the first step in a much needed tweaking of the Rules of Professional Conduct to reflect the times. "[Proposed] Rule 7.2j has begun to address the very real issue that is before us, that lawyers are more and more everyday abandoning what we understand as traditional forms of advertising and expanding to a more internet-based model," said Bowler. "The (current) rules just don't always apply."
Rule 7.2 of the Rules of Professional Conduct in Connecticut pertain to advertising. This proposal, subsection (j) reads: "Notwithstanding the provisions of subsection (d), a lawyer and service may participate in an Internet-based client to lawyer matching service provided the service otherwise complies with the Rules of Professional Conduct."
The proposed rule continues: "If the service provides an exclusive referral to a lawyer or law firm for a particular practice area in a particular geographical region, then the service must comply with subsection (d)."
The infamous subsection (d) referred to twice in the proposal requires firms that advertise to include the name of at least one lawyer admitted in Connecticut who is responsible for the advertisement's content. "Lawyers are somewhat restricted in the manner they advertise their services," said Bowler. "Lawyers are not allowed to overstate their abilities in their ads or promise results or compare those results against another attorney. Internet-based advertising isn't any different."
But what is different is that law firms and lawyers have little control over the content and design of matchmaking websites operated by someone else.
Bowler's rule addresses two types of online lawyer matching services; those that offer consumers the names of multiple lawyers or firms in a given geographic region, and those that identify only one lawyer or law firm for a particular region.
The latest proposal cuts the most slack for the multilawyer model.
This topic of online matching services was at the center of a controversy a few years back involving Chicago-based advertising website Total Attorneys. The company operates numerous websites for different practice areas which all work the same way: Attorneys pay $65 to receive leads on potential clients who enter their ZIP code and other contact information through the website.
Twelve attorneys in Connecticut were grieved for allegedly paying for referrals, a felony in the state. The Statewide Grievance Committee ultimately determined the lawyers had not violated any ethics rules.
At the time, some experts, including then-Chief Disciplinary Counsel Mark Dubois, believed a rule change was needed to reflect the decision. Bowler seems to have done that with the recent rule proposal.
David Atkins, of Pullman & Comley in Bridgeport, who regularly represents lawyers facing disciplinary sanctions, helped represent three of the five Connecticut bankruptcy attorneys named in the Total Attorneys grievance.
Atkins said that the existing advertising rule, requiring the name of at least one lawyer admitted to the bar in Connecticut, "has directly collided with a reality of the post-Yellow Pages, Internet era. [There are an] increasing number of solos and firms paying for their names to be promoted on Web-based group advertising sites they neither create nor maintain, including interactive, online client-to-lawyer match sites."
Atkins said the rule proposal addresses sites like Legalmatch.com, on which the name of a participating attorney generally does not appear at all unless, and until, the attorney expresses an interest in being "matched" with an inquiring consumer.
However, Atkins said problems could still surface on "region-exclusive" matching sites that list only one attorney per practice area in a geographic region. "Yes, consumers probably benefit if such sites are required to reveal the name of each participating attorney," said Atkins. "But it does seem onerous, if not unworkable, to require each participating Connecticut attorney to essentially vouch for the content of an entire website over which he or she has no control."
Bowler admitted that not all legal services websites are addressed by the new rule. For example, Shpoonkle.com, a website that allows attorneys to bid on a potential client's case, or other sites offering mobile phone apps that put someone immediately in touch with a criminal lawyer at the press of a button, are not governed by this new rule change.
"I think it's the start, I don't think it's the finish," Bowler said of the rule proposal. "The changes we've made will be in the discussion of any internet-based model, but will it have the answer for every internet-based model?" Bowler didn't think so.
Fred Ury, of Ury & Moskow in Fairfield, is a member of the American Bar Association's Commission on Ethics 20/20. Ury said Bowler's rule proposal is an "attempt to have the rules reflect what's going on in the marketplace."
"This is pay-per-click, that's what this is all about," said Ury. "This is how people are finding lawyers on the internet."
Ury said the rules can never keep up with technology. "The entire profession is going to change faster than what we're able to keep up with the rules so they have to be generic," said Ury. The rules are never going to specifically say "this website is good and that site is bad."
Dubois, the former chief disciplinary counsel who now practices law at Geraghty & Bonnano Attorneys At Law in New London, agreed with Ury. "A lot of commerce is moving to the internet," said Dubois. "The question is, how do lawyers do it without getting themselves in the disciplinary jackpot? To his credit, Bowler has been very much ahead of the curve with trying to see where this is going and make sure the rules are reasonable and workable."
Ralph Monaco, a technology-savvy past president of the CBA, said the association has not formally discussed the rule proposal.
"I can understand why [Bowler's] office would want to have a rule addressing this," said Monaco, who practices law at Conway, Londregan, Sheehan & Monaco in New London. "Certainly, a lot of county bar associations have had referral services for years. In the so-called olden days, there was an ad in the Yellow Pages for the local bar association to refer people to lawyers. Now this is taking that and moving it into the cyberworld. I think a rule addressing it is the next step in the process here."