A pair of new ethics opinons from the Legal Ethics Committee of the San Diego County Bar Association addressing lawyer marketing issue have been approved and published.
Opinion no. 2019-1 discusses attorney's marketing of legal forms. It asks:
Under what conditions may lawyers provide electronic form-based products to customers?
2019-1 concludes: “To the extent that lawyers sell form-based solutions, they must either provide an electronic form that the customer customizes without recommendations, or form an attorney-client relationship. A lawyer may offer a form product without creating an attorney-client relationship so long as the lawyer provides no advice, including which form to use or how to complete it.”
What legal ethics regulations and standards must a California lawyer consider when deciding whether to participate in a marketing program where consumers obtain an immediate, brief, limited-scope telephonic consultation with a lawyer selected by the program? If that program charges potential clients a flat fee for a limited scope of legal services that includes both the fee for legal services and the program's marketing fee, will the lawyer's participation run afoul of ethics rules and regulations?
The Opinion's digest concludes:
Rules 5.4 and 7.2 preclude a lawyer from paying for cases, whether by a division of fees or as separate payment for a case. Likewise, Business and Professions Code section 6152 precludes the use of runners or cappers in the solicitation or procurement of business for an attorney. Certified legal referral services are designed to facilitate the process of lawyer selectionby identifying lawyers who meet minimum criteria.
A lawyer's payment of a fee to a lawyer referral services that does not qualify under the State Bar Rules is a violation of Rule 5.4(a)(4), which prohibits a lawyer from paying a nonlawyer for recommending the lawyer's services. A lawyer-client relationship initiated via a third-party introduction does not relieve the lawyer of the responsibility of performing a conflict check pursuant to Rule 1.7. Where payments are made to a lawyer by a third party, the lawyer must obtain the client's informed written consent pursuant to Rule 1.8.6(c). Failing to obtain informed consent for third-party payments and commingling fees for legal services with “marketing fees” or other property is a violation of California's legal ethics regulations.
Rule 5.4 prohibits a lawyer or law firm from sharing fees directly or indirectly with an organization that is not authorized to practice law. Unethical fee-sharing results where a consumer pays legal fees directly to a third party, which holds and controls the fees until services have been completed, and which then splits the fee with a lawyer.
These opinions arrive against the backdrop of fermenting and controversial change in the profession over how legal services are marketed.