The daily deal website offers services and/or products at a discounted rate and offers the user the option of purchasing a coupon voucher for the discount to be subsequently redeemed by the merchant. Because website companies like Groupon collect the advanced payment upfront from the consumer, retain a portion for themselves, and then turn over the remainder of the fee to the merchant, the real question is: Can a lawyer ethically use such a website to advertise their legal services, or is it a violation of Model Rule of Professional Conduct 5.4, which prohibits an attorney from splitting a fee with a non-lawyer? Or, in the alternative, is this simply the cost of advertising?
A handful of jurisdictions, including New York, North Carolina, and South Carolina, have considered this issue and decided in favor of the lawyer advertising (under their respective ethical rules) with special considerations and warnings for lawyers who choose to use these website services. Lawyers who decide to use these websites as a marketing tool must still comply with the advertising rules that prohibit false or misleading statements regarding their services. Next, lawyers must remember that in acting as a fiduciary, they must treat unearned fees as property belonging to the client pursuant to Rule 1.15 and maintain such fees in an attorney trust account until earned. Likewise, if an attorney is unable to undertake the representation due to a conflict of interest or in the event that the client never actually engages the lawyer’s services, the lawyer must return any unearned fee to the client pursuant to Rule 1.16(d), which deals with termination of representation.
Because the issue of lawyer advertising on daily deal websites is a relatively new phenomenon, it is hard to predict all of the ethical quandaries that one might face. Time will tell whether this approach to lawyer advertising comports with a lawyer’s ethical requirements under the rules of other jurisdictions and whether, as a business model, it is even practical. Until then, lawyers who choose the wait-and-see approach when it comes to Groupon advertising can still snatch up last-minute deals on spa treatments, restaurants, and tickets to museums.