By Procopio Partner and General Counsel Carole J. Buckner
A recent appellate court opinion and an opinion from the San Diego County Bar Legal Ethics Committee provide guidance to attorneys regarding online lawyer referral services. In a word, beware.
In Jackson v. Legal Match.com, 42 Cal.App.5th 760 (2019), the court found that the LegalMatch lawyer referral service engages in certifiable referral activity, not mere advertising, under Business & Professions Code § 6155, because a referral occurs when LegalMatch receives information from consumers and sends that information to lawyers. LegalMatch invites consumers to submit information about their legal issue, along with geographic location and legal category and sends information to lawyers who can reach out to the individual. Lawyers purchase annual subscriptions. The number of lawyers in any geographic location and area of legal expertise is limited. “Solicitation robs the bar of dignity … [and] creates an atmosphere of commercialization rather than professionalism.” Based on the finding that LegalMatch engaged in certifiable referral activity, and that LegalMatch was not certified, the operation violated § 6155.
You may wonder, what about the First Amendment? Free speech considerations may come into play under both the U.S. and California constitutions. These were not fully briefed in the case, however commercial speech has limited First Amendment protection and may be regulated if narrowly drawn and directly supportive of a substantial state purpose, such as protection of consumers from unscrupulous lawyer solicitation activity.
The San Diego County Bar Association, in its recent Ethics Opinion No. 2019-2 (2019) also weighed in on lawyer referral services, providing important guidance. The Opinion addressed a hypothetical service provider engaged in internet-based marketing through a for-profit company which was not certified as an approved lawyer referral service with the California State Bar. The Company operates an online legal directory with publicly available reviews and ratings, and Company offers a matching service for potential clients to obtain discrete legal services. The Company matches lawyers and clients through either “instant connection mode” or “consumer chooses” mode. Under the instant connection mode a consumer can select an option to connect with a participating lawyer who is not identified by name. That Consumer may provide information to the lawyer. The lawyer may contact consumer for a 15 minute call at a fixed cost. Under the consumer chooses mode, a Consumer selects a lawyer from profiles on Company’s website. The Consumer can provide information to the lawyer and upload documents for lawyer’s review. The lawyer selected by the consumer must contact the Consumer within one business day. Lawyers provide services for a fixed fee the Company determines. Consumers pay fee to Company, company retains a “marketing fee” of 20 to 30% and remits the rest to the lawyer.
The SDCBA concluded that the Company’s business model involves unethical compensation for securing legal services resulting in a violation of the California Rules of Professional Conduct, Rule 7.2(b) prohibiting a lawyer from compensating another for recommending or securing legal services and a violation of Rule 5.4 of the Rules of Professional Conduct, prohibiting attorneys from sharing fees with non-lawyers. The opinion concluded that the Company’s “instant connection” mode is an unauthorized lawyer referral service. The Company has not complied with Business & Profession Code § 6155, et seq. Lawyers participating in such services violate the Rules of Professional Conduct.
If you are involved with an online lawyer referral service, it is important to understand how the service operates and whether it is registered with the California State Bar.