UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 00-10
A dot.com company is an Internet service database that provides a mechanism for consumers or businesses to locate attorneys who are willing to handle their legal work. Attorneys who wish to participate in the service complete forms to become members of the dot.com company database. Consumers or businesses complete a dot.com company information form that provides general information about their cases, location, and budgets. Once this form is completed, the consumer or business clicks the "Locate Attorney" button. The dot.com company then searches its database to find attorneys that meet the requirements of the consumer or business. The company displays a list of attorneys identified by its database. The consumer or business can then choose whether to have information sent to all or only a selected number of these attorneys. The dot.com company sends e-mails to the attorneys about the case. If an attorney is interested in the case, the attorney responds by e-mail to the inquiring consumer or business. The consumer or business then decides whether to communicate further with the attorney. The dot.com company does not charge any fees to either consumers, businesses, or participating attorneys.
Question:
May an attorney ethically participate in the dot.com company?
Opinion:
The material posted by dot.com company on the Internet is extensive. Thus the Committee is not in a position to evaluate all aspects of the dot.com company system for compliance with the South Carolina Rules of Professional Conduct. Lawyers should review the information and operation of the dot.com company for compliance with the South Carolina Rules on Advertising and Solicitation, particularly Rules 7.1-7.3. This opinion discusses certain issues that appear to be raised by the dot.com company service.
Rule 7.1(d) of the South Carolina Rules of Professional Conduct provides that a communication about a lawyer's services is improper if it "contains a testimonial which concerns the quality of the services rendered or results obtained." The Committee notes that the dot.com company includes statements from participating consumers and attorneys, who are identified by location but not by name, praising the service. In the Committee's opinion these statements do not constitute impermissible testimonials under Rule 7.1(d) because they relate more to the dot.com company service than to the professional services rendered by attorneys. In addition, these statements do not identify specific attorneys.
Rule 7.2(c) states, "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 advertisements permitted by this Rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization." The Committee understands that lawyers are not charged a fee for participation in the dot.com company, so the system does not seem to violate Rule 7.2(c). Participating lawyers could not ethically pay to the dot.com company any portion of the fees received from clients obtained through the service. See S.C. Rule Prof. Cond. 5.4(a).
Rule 7.3 contains various prohibitions on in-person, recorded, and direct mail solicitation of clients. The dot.com company system does not appear to violate the rules on solicitation because the prospective client rather than the attorney initiates the contact. The prospective client first chooses to access the dot.com company web page and then chooses to have the client's e-mail address sent to attorneys identified by the dot.com company data base. Attorneys only respond to inquiries they receive rather than initiating a communication to the client. In the Committee's view, this system is analogous to an attorney responding to a telephone call from a prospective client when the prospective client has obtained the attorney's name from a published list of attorneys.
Lawyers who are considering participation in the dot.com company system should review all postings and the operation of the system for compliance with the South Carolina Rules of Professional Conduct. Based on a limited review, it appears to the Committee that participation in the system is ethically permissible, provided the lawyer does not pay the dot.com company any fees at any time for participating in the system.