[9] Paragraph (c) of this Rule permits a lawyer to communicate that the lawyer does or does not practice in particular areas of law. A lawyer is generally permitted to state that the lawyer “concentrates in” or is a “specialist,” practices a “specialty,” or “specializes in” particular fields based on the lawyer’s experience, specialized training or education, but such communications are subject to the “false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services.

[10] The Patent and Trademark Office has a long-established policy of designating lawyers practicing before the Office. The designation of Admiralty practice also has a long historical tradition associated with maritime commerce and the federal courts. A lawyer’s communications about these practice areas are not prohibited by this Rule.

[11] This Rule permits a lawyer to state that the lawyer is certified as a specialist in a field of law if such certification is granted by an organization approved by an appropriate authority of a state, the District of Columbia or a U.S. Territory or accredited by the American Bar Association or another organization, such as a state supreme court or a state bar association, that has been approved by the authority of the state, the District of Columbia or a U.S. Territory to accredit organizations that certify lawyers as specialists. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable. To ensure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

Required Contact Information

[12] This Rule requires that any communication about a lawyer or law firm’s services include the name of, and contact information for, the lawyer or law firm. Contact information includes a website address, a telephone number, an email address or a physical office location.

Annotations

Advertising

Rule 7.1(a), like Model Rule 7.2(a), expressly authorizes lawyer advertising. See La. Rules of Prof’l Conduct r. 7.1(a) (2009). Furthermore, the United States Supreme Court has held repeatedly that lawyers have a First Amendment right to engage in truthful, nonmisleading commercial speech–including advertising. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191, 199 (1982); Bates v. State Bar of Ariz., 433 U.S. 350, 374 (1977); see also Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447, 447 U.S. 557, 563 (1980).

No Payments for Recommending Lawyer’s Services

Paragraph 7.2(c)(13) of this rule prohibits a lawyer from paying any third person for recommending the lawyer’s services. La. Rules of Prof’l Conduct R. 7.2(c)(13) (2009). In so doing, it prohibits, among other things, a lawyer from paying a “runner” to “hustle” cases from prospective clients. See, e.g., In re Coney, 891 So. 2d 858 (La. 2005) (disbarring lawyer for paying “runners” to solicit personal injury cases); In re Kirchberg, 856 So. 2d 1162 (La. 2003) (imposing permanent disbarment on lawyer for criminal convictions and payments to runners); In re Sledge, 859 So. 2d 671, 673-74 (La. 2003) (disbarring lawyer for paying nonlawyers $50 to $100 for case referrals); In re Lockhart, 795 So. 2d 309 (La. 2001); In re Grand, 778 So. 2d 580 (La. 2001); see also In re Cuccia, 752 So. 2d 796 (La. 1999); In re Tolchinsky, 740 So. 2d 109 (La. 1999); In re Brass, 696 So. 2d 967 (La. 1997). The rule allows a lawyer to pay the costs associated with permissible advertising or other communications. See La. Rules of Prof’l Conduct R. 7.2(13) (2009).

No Incentives for Favorable Online Reviews

Online legal directories (such as Avvo) permit clients to review and rate their lawyers. Likewise, innumerable social-media sites (like Facebook, YouTube, and others) allow users to “connect” with lawyers and law firms, and to “like,” “follow,” or “subscribe” to them and their posts. May a lawyer offer an incentive to social media users and clients to rate, connect or otherwise interact with lawyer’s social media presence? In an October 2019, ethics opinion, the North Carolina State Bar said “no.” See N.C. State Bar Assoc., Offering Incentive to Engage with Law Practice’s Social Networking Sites (Oct. 25, 2019).

A lawyer asked the North Carolina Bar Association whether it was professionally appropriate “to offer a prize incentive to anyone who connects or interacts with any of his social media platforms. All users who connect or interact with Lawyer’s law practice social media account will be entered into a drawing for a prize.” See id. In answering the inquiry in the negative, the opinion concluded that offering such an incentive for providing online reviews would violate two standards of conduct.

First, such an incentive would violate the principle that “lawyers may not give anything of value to a person for recommending the lawyer’s services.” A client’s “like” of a lawyer on social media is akin to a recommendation of the lawyer’s services.

Second, a review prompted by an undisclosed incentive would be an improper “false or misleading communication about the lawyer or the lawyer’s services.” Said the opinion:

The purpose behind Rule 7.2(b)’s prohibition on offering something of value in exchange for recommending services is to ensure that recommendations for a lawyer’s services are based upon actual experiences or legitimate opinions of the lawyer’s service, rather than financial incentive. The displayed “like” of a law practice may indicate some prior experience with the law practice or the personnel associated with the practice upon which the user’s “liking” of the practice is based.

See id.

This opinion provides good advice. Lawyers can–and should–have a visible presence on the Internet in general, and on social media in particular. Lawyers can–and should– encourage satisfied clients to “like, share, follow, or otherwise interact” with such social media accounts. But to comply with the rules, lawyers simply can’t pay their clients or others for such positive endorsements.

AVVO Advisor Involves Impermissible Payments

Avvo Advisor is a service that connects prospective clients with Louisiana lawyers- for a fee.  How does it work?  A prospective client visits the website https://ww.avvo.com/advisor, selects the legal service needed, pays Avvo a fixed fee, and Avvo arranges for an “experienced Louisiana lawyer” to return the prospective client’s call within minutes.

From the lawyer’s standpoint, participating is easy.  The lawyer simply clicks the “Join Today” button and agrees to provide certain legal services for a fixed fee.  For example, the flat fee for a “15-minut Family advice session” is $39.00; filing for an “uncontested divorce” is $995.00; and creating a “last will and testament” is $295.00.  Avvo boasts:

With more than 8 million visits to Avvo each month, we can connect you with clients who have already paid for limited-scope legal services.  There’s no chasing leads.

You choose from dozens of legal services and control your availability.  Clients only buy what you want to sell, when you want to sell it.

Avvo handles the billing up front, so you can focus on getting the client the help they need.  No sending invoices.

After the lawyer provides the services, Avvo sends the lawyer “100% of the client’s payments.”  The lawyer then “[a]s a completely separate transaction,” pays a “per-service marketing fee.”  The amount of that marketing fee “depends on the service, and ranges from a $10 marketing fee for a $39 service, to $40 marketing fee for a $149 service, up to a $400 marketing fee for a $2995 service.”  See Attorney FAQ for Avvo Legal Services.

“Is it ethical?,” you ask.  According to Avvo, “yes, it is.”  Avvo says that is not getting paid for lawyer referrals:  “Avvo is not referring people to a particular lawyer.  Potential clients choose which attorney they would like to work with from all available, participating attorneys.”  Furthermore, Avvo says that it is not sharing in legal fees: “Fee splits are not inherently unethical.  They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment.  We believe that Avvo Legal Services fees, if deducted like credit card fees, would involve the sort of technical fee split that would not create such a potential for compromise.”  See id.

The problem is that Avvo is wrong.  As several ethics opinions have correctly concluded: “The referral service described in the request violates Rule 5.4 as impermissible fee sharing, [and] violates Rule 72 as paying for a recommendation of services beyond the reasonable costs of advertising” among other problems.  See Utah Ethics Advisory Opinion Committee, Op. No. 17-05 at 4-5 (Sep 27, 2017); Ind. Sup. Ct. Discipl’y Comm’n, Op. 1-18 (Apr. 2018); see also S.C. Ethics Op. 16-06 (2016); Pa. Ethics Op. 2016-200 (2016); Ohio Ethics Op. 2016-3 (2016); N.Y. State Bar Ethics Op. 1132 (2017); N.J. Ethics Op. 732 (2017).  Considering these unfavorable ethics opinions, Louisiana lawyers should avoid participating in Avvo Advisor.  Louisiana Rule 5.4(a) provides that a “lawyer or law firm shall not share legal fees with a non lawyer,” except under unusual circumstances.  Similarly, Louisiana Rule 7.2(c)(13) provides that a “lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may pay the reasonable cost of advertising or written or recorded communication permitted by these Rules, and may pay the usual charges of a lawyer referral service….” Both rules are squarely implicated by Avvo’s questionable business model.

Payments for “Lead Generation”

In August 2012, the ABA amended the comments to the corresponding model rule to expressly provide that:

a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another).

It is uncertain, however, whether Louisiana would allow this practice. Some other states have not. See, e.g., Zelotes v. Rousseau, No. 09-0412, Connecticut Statewide Grievance Committee (Feb. 8, 2010).

First Amendment Problem?

The court’s new requirement that lawyers submit advertisements to the LSBA prior to publication in order to get a “filing number” may be an impermissible prior restraint on commercial speech that violates the First Amendment. The current advertising rule presents no “prior restraint” issue because it permits Louisiana lawyers to file with the LSBA “concurrently with the lawyer’s first dissemination of the advertisement.” See La. Rules of Prof’l Conduct r. 7.7(b). See, e.g.Mezrano v. Alabama State Bar, 434 So. 2d 732, 735 (Ala. 1983) (holding that requiring submission of advertisements “shortly after” first publication was not a “prior restraint” on speech). In contrast, the new rule mandates filing before the speech can occur, a requirement that raises constitutional concerns.

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving violations of Rule 7.2: disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed to the profession, and causes little or no actual or potential injury to a client, the public or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1986).

However, not all technical violations of this rule subject a lawyer to discipline. In In re Loughlin, 148 So. 3d 176 (La. 2014), the Louisiana Supreme Court found that the lawyer’s use of the term “specializing” on his website caused no harm to the public and, therefore, did not rise to the level of sanction able misconduct.

Notes

This page was updated on February 1, 2021.

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