- 1. Is LegalMatch a referral service?
No. LegalMatch is not a referral service. To the contrary, LegalMatch is a relatively new approach and system to bring clients and lawyers together; a nationwide, double-blind matching system. After more than five years of experience, work and effort, LegalMatch has perfected a system and approach that squarely addresses all of the ethical issues and requirements as promulgated by the state bars and disciplinary boards of the various states.
A "lawyer referral service" or a "lawyer referral program" is a well-defined system that is used extensively throughout the country by state bar organizations and local bar associations. In addition, the American Bar Association (ABA), maintains a set of model rules that identifies and describes 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.
LegalMatch does not refer its attorney members to its consumers; rather, the consumers solicit attorney responses by presenting their case through the LegalMatch on-line questionnaires, and the attorneys respond directly to those prospective clients with whom they are sincerely interested in working.
- 2. Is LegalMatch a directory or "Yellow Pages" listing service?
No. LegalMatch 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 our Client User Agreement, and has completed the on-line case questionnaires, attorneys then respond to the client's submission, and only then does that consumer receive the name and contact information of those attorneys who respond.]
Directory and "Yellow Pages" 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 are 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.
- 3. Is LegalMatch a pre-paid legal plan?
No. LegalMatch 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 members 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.
- 4. Is LegalMatch registered or licensed with the various state bars or disciplinary boards?
Typically, only lawyer referral services or pre-paid legal plans are permitted to be "registered" or "certified" by the organization in each state that governs lawyer discipline (either the state bar or the disciplinary board under the jurisdiction of the supreme court of that state). Because LegalMatch is neither a lawyer referral service nor pre-paid legal plan, it is not required to register or become certified.
- 5. Does LegalMatch violate the rule against attorneys giving something of value for recommending the attorney's services?
No. LegalMatch does not refer its attorney members to its consumers; rather, the consumers solicit attorney responses by presenting their case through the LegalMatch online questionnaires, and the attorneys respond directly to those prospective clients with whom they are sincerely interested in working.
Since LegalMatch is a non-discretionary matching service, and in no way refers a particular lawyer to a particular client, the fees charged to the attorney fall into the permissible and allowable normal advertising fees.
- 6. Does LegalMatch violate the rule against solicitation?
No. LegalMatch does not violate the rule against solicitation. Most state bars or disciplinary boards have a set of rules, usually called the "Rules of Professional Conduct." Most of these rules are based upon the ABA Model Rules, and typically have the same naming and numbering convention. In particular, Rule 7.3 contains various prohibitions on in-person, live telephone, or written communications with prospective clients.
These rules follow the same structure and theme, and usually include the same basic requirements and prohibitions:
- 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).
- The use of coercion, duress, harassment, compulsion, intimidation or threats to assist the attorney in obtaining employment is prohibited.
- Any advertising or solicitation material is usually required to contain the words "Advertising Material".
- 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 responses 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, 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 then submit their case to the system, and thereby request 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.
- Fourth, the only advertising or solicitation that occurs is by way of the attorney's own online 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.
- 7. Does LegalMatch prevent running a conflicts check?
No. LegalMatch does not prevent running a conflicts check. In most situations which do not involve the LegalMatch system, it is necessary to meet with or interview the prospective client, review the circumstances of their situation, and review related documents, if any, in order to make a preliminary determination as to who the "client" will be and what related organizations or individuals may exist, for the purpose of running a preliminary conflicts check. Even after formal engagement, subsequent conflicts checks may need to be performed.
In the situation of obtaining a client through the LegalMatch system, the Case Summary itself does not take the place of an initial client interview. The LegalMatch on-line questionnaire is designed to bring forth enough information, in summary format, so that the attorney can make a quick determination as to whether or not the client is worth meeting for an initial client interview (in addition, client users are instructed not to provide identifying or incriminating information in their Case Summaries). In fact, an attorney member cannot obtain the name of the prospective client from the Case Summary, and this is for the protection of both the client and the attorney (however, it should be noted that the consumer may opt-in to disclose their identity and contact information in the Case Summary, and this would aid in running a preliminary conflicts check).
Only if the attorney has interest in speaking with the consumer, and the consumer has interest in speaking with the attorney, does the attorney then receive the consumer's name and contact information. At this point, the relationship formation process mirrors that of any other attorney-client engagement: The attorney conducts an initial client interview, as they would do with any other prospective client, and would run conflicts check as they would normally perform.
- 8. Is LegalMatch a bidding or auctioning system?
No. In the LegalMatch system, attorneys only respond once to a Case Summary. In addition, an attorney's "response" is nothing more than a description of services, and does not constitute a formal contractual "offer" that could be accepted by the consumer (unless stipulated by the attorney); rather, the response is designed to focus the consumer's attention on the experience and skills of the attorney and how they "match" the consumer's needs. The attorneys who make "responses" on the same Case Summaries do not see each other's rates or fee structures, nor do they see each other's name or contact information.
One of LegalMatch's primary goals is to give consumers a choice of different attorneys, with different backgrounds, interest, and levels of experience, (within the same geographic region and area of practice), for the purpose of allowing consumers to choose an attorney who suits their needs and affinity.
Rather than promoting bidding or auctioning, LegalMatch has undertaken a substantial effort to eliminate even the appearance of competition from the process by which consumers select an attorney. For example, as a part of the Member Rules, (which form a part of the Attorney Membership Agreement), each attorney in LegalMatch agrees not to use the LegalMatch program for, among others, the following activities:
- "Using the Program for any purpose other than to promote Attorney services;
- Engaging in any sparring or competitive fighting of any kind with Users or guests of the Program, including between Attorneys; or
- Any use of the Program that creates the appearance of impropriety or otherwise may cast any negative light upon any User or guest of the Program, or LegalMatch or its mission."
The format of the LegalMatch system, and the rules by which it operates, were designed to prevent bidding or auctioning. Rather, LegalMatch fosters client empowerment by providing each client with a focused spectrum of different attorneys from which to choose, with each attorney providing a personal note and a detailed Attorney Profile.
- 9. What are the state Bar Associations Formal Ethical Opinions Regarding an attorney's use of LegalMatch?
Six key states have addressed this issue directly and head-on.
The South Carolina Bar advised, in Opinion #00-10, that a lawyer could ethically participate in an Internet service that matched attorneys and clients when the service provider plays no role in the decision-making process of the recipient of the information provided. The Committee also found that reasonable payments to an Internet service based solely on the number of hits (and not based on whether the user ultimately becomes a client) are a way of determining advertising charges based on the effectiveness of the Internet advertisement and are permissible under Rule 7.2(c).
The Professional Ethics Committee of the State Bar of Texas recently emitted a new opinion in support of allowing Texas lawyers to participate in for-profit Internet websites that help match attorneys with people seeking legal representation. In Opinion 573, released August 11, 2006, the Texas Ethics Committee, announced that it permits automated online legal matching services and that lawyers in Texas could ethically use this type of service.
The Rhode Island Supreme Court Ethics Advisory Panel recently ruled that the LegalMatch consumer/lawyer matching model was an acceptable method for attorneys to utilize when finding prospective clients.
The Opinion, No. 2005-01 request No. 885, and published in February 24, 2005, states
The Panel concludes that (a) the annual membership fee represents the reasonable costs of advertising permitted by rule 7.2(c); (b) the arrangement is not a referral service;(c) payment of the annual fee to LM.com (LegalMatch) is not impermissible fee-sharing with a non-lawyer; and (d) a participating lawyer's reply to a consumer's request for legal services is not a prohibited solicitation. The Panel concludes that the proposed arrangement with LM.com is permissible under the Rules of Professional Conduct.
According to the Supreme Court of Ohio, DR 2-103(E) states that "nothing in this rule [DR 2-103--the Referral and Recommendation Rule] prohibits a lawyer from accepting employment received in response to the lawyer's own advertising, provided the advertising is in compliance with DR 2-101."
The Board in Opinion 2000-5 addressed attorney participation in an online attorney referral service. In Opinion 2000-5, the Board advised as follows: If an online lawyer referral service is in compliance with DR 2-103 of the Ohio Code of Professional Responsibility and with the Lawyer Referral and Information Services Regulations, an attorney may pay the lawyer referral service a membership or registration fee as well as a fee calculated on a percentage of the legal fee earned. DR 2-103(C)(2)(a), DR 2-103(C)(1)(c), DR 2-103(B), and DR 3-102(A)(4) expressly permit both the payment of a membership or registration fee to a lawyer referral service as well as a fee calculated on a percentage of the legal fee earned. Before participating in a lawyer referral service, an Ohio attorney should determine whether the referral service meets the requirements of DR 2-103(C) (1)(a) through (j) and complies with the Lawyer Referral and Information Services Regulations.
According to the North Carolina Bar Association, 2004-12 formal ethics Opinion begins by describing LegalMatch as "similar to both a lawyer referral service and a legal directory", the Opinion later holds clearly that LegalMatch "is not strictly a referral service" and that the failure of LegalMatch to meet the conditions placed upon lawyer referral services in general "should not prohibit a lawyer from participating." The Opinion clearly finds that LegalMatch is not a lawyer referral service, and goes on to say: "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."
*As always, attorney members of LegalMatch should keep in mind that LegalMatch is not a law firm and cannot give legal advice. Attorney members may use the above information to confirm for themselves that their activities, including their use of LegalMatch, are lawful. The laws governing attorneys vary by state, and the above description of the prevailing national view could vary in some particulars in certain states. LegalMatch is constantly at work to comply with new ethical rules in all states. However, attorney members, not LegalMatch, are responsible for ensuring their own compliance with applicable rules and regulations.