The ABA Standing Committee on Ethics and Professional Responsibility has approved the use of group-coupon or deal-of-the-day marketing programs by lawyers. In Formal Opinion 465 (Oct. 21, 2013), the committee considered marketing programs such as Groupon and Amazon Local that allow would-be clients to prepay a marketing organization for legal services. After receipt, the organization shares a portion of the payment with a participating lawyer who then provides the services. Said the committee:
Lawyers may seek to obtain new clients through these marketing organizations’ activities. However, a lawyer must exercise great care to ensure that both the offer and any resulting representation comply with all obligations under the Model Rules, including avoiding false or misleading statements and conflicts of interest, providing competent and diligent representation, and appropriately handling all money received.
To avoid lawyer disciplinary problems, the committee suggested the following:
- Assure that the portion of the prepayment that the marketing organization retains is no more than the “reasonable” cost of advertising. If the portion retained is too large, it may be considered fee sharing with nonlawyers in violation of Rule 5.4.
- Assure that the deal-of-the-day offer is not false or misleading in violation of Rule 7.2(c). For example, a lawyer should define the scope of the services included, disclose whether the deal is transferable and describe the circumstances under which the lawyer will refund the purchase price.
- Assure that deal purchasers understand that no actual or prospective lawyer-client relationship will be formed until the lawyer actually consults with the client, clears conflicts and executes a formal engagement agreement.
- Assure that the lawyer limits the quantity and type of services offered to those matters that the lawyer can handle competently and diligently in compliance with Rule 1.1 and Rule 1.3.
- Assure that prepaid legal fees are placed in trust if required by Rule 1.15.
- Assure that all monies paid by purchasers that are not earned are fully refunded.
While this opinion is informative, remember that the ABA Standing Committee on Ethics and Professional Responsibility has no authority whatsoever to bless any lawyer’s conduct—particularly the conduct of a lawyer practicing in Louisiana. Louisiana’s advertising rules differ markedly from the ABA rules interpreted by the committee. In fact, they are among the most detailed and restrictive in the country. For these reasons, a Louisiana lawyer should not consider this opinion a green light to engage in deal-of-the-day internet marketing.
