New York County Bar Advocates Ethics Safe Harbor for Online Lawyer Referrals
By Keith R. Fisher
Bar associations and regulatory bodies in several states have issued reports or proposals recommending or suggesting significant changes in the regulation of legal services. Spurring many of these efforts is the “access gap”— 50% of middle-class Americans and an even higher percentage of low-income Americans (86%, according to ABA President Martinez) cannot afford and thus do not receive adequate assistance for their legal problems.
The New York County Lawyers’ Association is supporting a safe harbor in the ethics rules that would remove impediments to for- profit online legal referral or matching services (“FPLMS”). A Task Force of the Association previously issued a report recommending that the ethics rules be changed. The report reviewed the FPLMS industry, considered the applicable ethical rules, and studied whether consumers need protection in this regard (and if so, in what regard).
If such a movement were to extend beyond New York, then, in order to assist FPLMS entities with achieving a sustainable business model, amendments to the Model Rules of Professional Conduct would have to be considered. Pertinent provisions include Rule 5.4(a), which generally prohibits a lawyer from sharing a fee with a nonlawyer, and Rule 7.2(a), which prohibits (subject to some common sense exceptions for advertising, bar-related referral services, and the like) “compensat[ing] or giv[ing] anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for recommending the lawyer’s services.”