From the Chair...

Standing Committee on Lawyer Referral and Information Service

ETHICS 20/20 AND THE ABA LRIS COMMITTEE

In 2009 ABA President Carolyn B. Lamm established the ABA Commission on Ethics 20/20. Its purpose was to review the ABA Model Rules of Professional Conduct in the context of advances in technology and global legal practice developments. What input from the ABA LRIS Committee could this Commission possibly need? As it turned out, our committee provided testimony on two critical occasions to the Commission, persuading the Commission to adopt one of our positions and later to reject an approach suggested by another ABA entity.

At the August 2011 ABA meeting in Toronto, the Commission met and took testimony from a number of individuals on some of its initial proposals. On behalf of our committee, immediate past ABA LRIS Committee Chair Sheldon Warren and Committee Members Ann Jacobs and William Ferreira researched, prepared, and presented information to the Commission in several areas important to Lawyer Referral and Information Services across the country. The most significant area addressed was on–line advertising by for–profit entities. This proposed modification of the ethics rules would have allowed for profit entities to provide a "pay–per–lead" service as opposed to the traditional "pay–per–click" service. The difference here may not be apparent to many who are not involved in this area, but Ms. Jacobs did a phenomenal job providing illustrations of each and explaining that pay–per–click is equivalent to our traditional Yellow Pages advertising: A lawyer's advertising message is delivered to the consumer, usually by the internet, through an intermediary and the consumer then makes a choice. As Ms. Jacobs clearly and patiently explained, however, pay–per–lead differs in that the intermediary often purports to analyze the consumer's legal need and then find the right attorney for them. In fact, that attorney may be "recommended" by the intermediary simply because the attorney bought a particular geographic territory in which that consumer is located. The intermediary gets paid by in effect delivering that consumer to the attorney. Thanks largely to Ms. Jacobs's polished presentation and advocacy, and the great support of Mr. Warren and Mr. Ferreira, the Commission followed our committee's reasoning and recommendations in this area in virtually every respect, and decided not to allow pay–per–lead advertising.

Shortly before the ABA mid–year meeting in New Orleans in February of this year, the ABA Standing Committee on the Delivery of Legal Services requested the Commission modify Model Rule 7.1 and eliminate Rule 7.2(b). The requested change to 7.1 would have eliminated the requirement that an attorney not make a false or misleading statement about the lawyer or the lawyer's services to anyone, replacing it with a prohibition against making such a statement only to a potential client. Again, on behalf of the LRIS Committee, Ann Jacobs appeared and argued forcefully that this would potentially give attorneys too much leeway in statements to a potential client's spouse, or relatives, or even friends. The Commission again agreed with our position.

The second proposal would have deleted Rule 7.2(b) from the Model Rules. Among other things, Rule 7.2(b) permits an attorney to pay monies to a qualified lawyer referral service. There was no recommendation to replace the Rule with anything else, and this could have created a great number of issues and problems. The Commission, upon hearing Ms. Jacobs's comments to this proposal, again agreed with the position our committee advocated and determined not to eliminate the rule.

Although often not in the glare of public light, the LRIS Committee has been very busy in areas not traditionally pursued by the committee, and it could not have done so without the heroic efforts of Ann Jacobs, William Ferreira, and Sheldon Warren, supported ably by ABA staff member Jason Vail. My continuing thanks to all of these people for that proverbial "job well done."