The Washington State Bar (of which I am a member) has issued an ethics opinion finding that attorneys can, generally speaking, participate in online lead generation services.
While it’s good to see the WSBA take this step, it isn’t breaking new ground. The centerpiece of the opinion reflects the comments (paragraph 5) the ABA added to Model Rule 7.2 last year.
Unsurprisingly, I also have a few beefs with the opinion.
Too Many Rules
First of all, I wish we could simply dispense with all of this nonsense. Attorneys can advertise – in any of a million ways, as long as such advertising isn’t false or deceptive. We’re burning far too many brain cells, and depriving consumers of far too much information, worrying about all of these irrelevant details. We should simply eliminate most attorney advertising regulation as the counter-productive surplussage it is.
What First Amendment?
It would have been nice if the Bar had given a nod to the First Amendment, and the substantial constraints it places on regulation of commercial speech. Too few bars do this in their ethics opinions, and fewer still actually interpret their rules (at least when giving ethics guidance) as if they are subject to the First Amendment. In this case, the Bar stuck exclusively to citing chapter and verse from its own Rules of Professional Conduct.
Forms of Payment for Advertising
While acknowledging that attorneys can participate in online lead generation, the opinion does not come flat out and say that attorneys can pay for such advertising on a per-lead or per-client basis. They imply as much, via a footnote, but the opinion would be clearer and more useful if they just came out and said it.
Words Attorneys Can’t Say
The foolishness around “specialists” and “experts” continues. Again, this IS what the Bar’s rules seem to call for. But the Bar would be wise to clarify that restrictions on the use of such language by attorneys are only constitutional to the extent such terms are accompanied by a statement or implication that a third party has certified such specialization or expertise. For example: as long as I’m not saying or implying that someone has conferred the honorific upon me, I’m confident the Bar can’t prohibit me from stating that I have expertise in attorney advertising regulation and communications law.
And Yet More Over-Regulation
The Bar properly notes the issue with “lawyer referral services,” insofar as they suggest they are “matching” a client to the best possible lawyer but instead sending them to the attorney who has paid for promotion. That’s no good; it deceives consumers and would violate even a sensible and limited set of ad rules.
However, the Bar goes too far in stating that it is likely “that prospective clients will infer that the lead generation service is making subjective matching decisions.”
Says who? Does the Bar have any empirical evidence showing that consumers make these kinds of assumptions?
There is a long list of federal court decisions over the last ten years dismantling attorney advertising regulation precisely for making these sort of evidence-free conclusions. Attorney regulators carry the burden of showing that their attempts to limit speech are both necessary and no more extensive than required.
Instead of making such a case, the Bar plows ahead to solve this “problem” by requiring that lead generation services “clearly disclose, in plain and conspicuous language, that the match was made solely based on specified objective information (e.g., geographic information, years of practice, or practice areas as described by the lawyer).” Such a “solution” is not only unsupported by any evidence that it is necessary, but is also overbroad in not acknowledging that there are many ways a company could market to consumers without implying that it was “matching” them to the right attorney based on subjective factors.
It comes full circle to my first point: by continuing to rely on such picayune, detailed advertising rules, the Bar makes it harder than it should be consumers to get information about, and access to, legal services.