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Caveat Solicitor: Considerations for Ethical Online Attorney Business Development

By Jordan M. Sartell

 

In 1977, while the Internet was still in its infancy, the United States Supreme Court overturned a previously sacrosanct tenet of the business of lawyering – thou shalt not advertise– on First Amendment grounds after an Arizona lawyer challenged the state bar association’s prohibition thereof.1 The rate at which the Internet has changed how people communicate has increased dramatically ever since.2 Nearly forty years later, amendments to the Illinois Rules of Professional Conduct (the “Rules”) acknowledge the reality that the Internet has fundamentally changed the ways in which lawyers can – and should – develop business.

In the Internet age, not only is it easier for lawyers to communicate with “the public,”3 it is easier than ever to send direct, targeted messages to individual members of the public. The Internet is full of potential clients, many of whom go to great lengths to identify themselves on social media platforms and specialized websites. For example, users of business and product review websites often leave descriptions of conduct that suggest violations of consumer protection law or related torts. Similarly, social networking friends’ posts about domestic and relational problems may suggest the need for family lawservices. Variations on this theme are as varied as the Internet itself. Analyzing some of the amended Rules, this article addresses some of the ethical implications of lawyers’ direct, online communications with specific individuals and increasingly sophisticated online advertising.

Rules Regarding Online Communications Recently Revised
Amendments to Rules 7.2 and 7.3, effective January 1, 2016, highlight the Supreme Court’s latest attempts to clarify the divide between ethical Internet-based advertising and prohibited solicitation and fee-sharing arrangements. The Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (“ARDC”) has yet to address such issues in disciplinary complaints, so for now, Illinois attorneys must rely upon the guidance provided by the revised comments to Rules 7.2 and 7.3.

 

Rule 7.3 – Solicitation of Clients

Rule 7.3 is no longer “Direct Contact with Prospective Clients,” but rather “Solicitation of Clients.” While the language of the Rule itself is little changed, the comments have been revised significantly. 

In an entirely new initial comment, the Supreme Court defines solicitation and distinguishes it from other, permitted forms of communication. It states:

A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.4

Read in combination with the existing prohibition against “in-person, live telephone or real-time electronic contact…when a significant motive for…doing so is the lawyer’s pecuniary gain,”5 impermissible solicitation has a three-pronged definition: a narrow scope (from a lawyer initiator to a specific, targeted recipient), a live medium (in-person, live telephone, or real-time electronic contact) and a pecuniary6 motivation (offering to provide legal services).

The potential for a lawyer to abuse his or her position and overwhelm the independent judgment of a potential client remains the touchstone of the prohibition on solicitation. A revised second comment now reads:

There is a potential for abuse when a solicitation involves direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.7

These concerns are well-founded because the Internet is often the first place to which people turn when they encounter a problem, legal or otherwise. A Google search for keywords describing a potential legal problem or a plaintive social media post seeking advice are reflexive responses for many Internet users nowadays.

Thus, a revised comment 3 cautions lawyers against “direct in-person, live telephone or real time electronic solicitation” because “lawyers have alternative means of conveying necessary information to those who may be in need of legal services.”8 Somewhat anachronistically, perhaps, the Rule suggests that “communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations…”9 

Rule 7.2 – Advertising 
The 2015 amendments did not substantively alter Rule 7.2. However, new comment language highlights concerns about Internet-based lead-generation efforts.10 In recent years, the ARDC has repeatedly disciplined lawyers who shared fees with, or made referral payments to, non-lawyers involved in generating business for the lawyer as prohibited solicitation that violates Rule 7.3.11 Naturally, then, the revisions to Rule 7.2 frame the analysis of lead-generation services through the same lens: “[L]awyers are not permitted to pay others for recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3.”12 The new language pertaining to Internet-based lead generation reads:

[A] lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) and 5.4, and the lead generator’s communications are consistent with Rule 7.1.13

To comply with Rule 7.1 in this context, a lawyer may not pay for lead generation that “states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral.”14

Online Communications in Practice
Lawyers’ use of increasingly sophisticated online communication and advertising technologies implicate the revised Rules.

First-Party Attorney and Law Firm Websites
Like other websites, lawyer and law firm websites have become increasingly sophisticated as the Internet has matured. Once little more than text-heavy electronic business cards providing contact information and descriptions of a firm’s practice areas, law firm websites now often boast eye-catching, high-resolution visuals and more elaborate means of encouraging visitors to contact the attorneys whose site it is. The propriety of lawyers providing general information about themselves online is well-established,15 but capacity to initiate text chat, voice, or video communications from a website implicate the recent revisions of Rule 7.3 and Rule 7.2 as well as other Rules beyond the scope of this article.16

Such communications with website visitors are real-time electronic communications and, if initiated by the lawyer and motivated by pecuniary gain, raise the specter of prohibited solicitation.17 A visitor simply browsing the firm’s website is not likely to take up the opportunity to chat, but someone in extremis would likely be more willing to participate in an online real-time exchange and thus be more vulnerable to over-reaching by a lawyer.18

Determining the applicability of Rule 7.3 may turn upon whether such communications are “initiated by the attorney.”19 Most websites require some affirmative interaction from a user to initiate a real-time session, arguably tilting the scale away from attorney initiation, but the user’s interaction is often actively sought out with inviting text, flashy graphics, or a moving “pop-up” within the website space, tiling the scale in the opposite direction. Positioning real-time communication options alongside traditional contact information and eschewing an aggressive “Can we help you?” presentation style may be the better choice for compliance with the Rule.

Providing effective disclaimers before the beginning of a real-time exchange may be another way to address the Rules’ concerns. While the content of an effective disclaimer must be informed by the specifics of a given lawyer’s field of practice, some general considerations include ensuring that communications are truthful and not misleading; ensuring that nonlawyers who may be participating in the chat do not stray into territory that violates the Rules; and ensuring that website visitors are fully aware of any applicable jurisdictional limitations of the lawyer’s practice.20

Direct Messages via Social Media and Other Websites
Although direct messages to fellow social media or website users may seem akin to traditional means of attorney advertising, they present a number of different ethical issues for lawyers.

First, while technically asynchronous and thus outside the scope of Rule 7.3, Internet messages can, if their recipient so chooses, quickly become a real-time exchange in which the lawyer must take care not to engage in prohibited solicitation.

Second, likely because of bandwidth and other technical limitations now largely moot, Internet messages encourage brevity and informality. Thus, disclosure requirements associated with traditional advertising could appear somewhat awkward in this context. Nevertheless, lawyers must adhere to them. For example, lawyers must include the phrase “Advertising Material” at the “beginning and ending of any recorded or electronic communication.”21 Direct, online communications are certainly “electronic” and the only exception to this requirement pertains to replies to messages generated in response to a request initiated by a third party.22 While some lawyers include the required disclaimer in biographical profiles associated with a specific social media platform, this information does not always accompany each “electronic communication” subsequently generated via that profile. This could raise compliance questions. Additionally, the Rules also require the inclusion of “the name and office address of at least one lawyer or law firm responsible for” the message’s content.23 Therefore, that expanded character count notwithstanding,24 Twitter may not be the best medium in which to send attorney advertising messages.

Third, because many social networks require users to obtain permission from others before being granted the ability to send message to them, e.g., joining another user’s “network” on LinkedIn, becoming a Facebook “friend,” or a Twitter “follower,” lawyers must not misrepresent their underlying (presumably pecuniary) motivation for requesting that permission.25

Finally, it bears repeating that lawyers must take special care to avoid the unauthorized practice of law when communicating with Internet users who live outside of jurisdictions in which the lawyer is licensed to practice law.26

Targeted Internet Advertising
Contemporary Internet advertising is as far removed from the traditional road-side billboard or television commercial as the Ford Model T is from the Tesla Model S. Data-driven targeting is the rule of the day because everything users do online, from websites visited, to searches made, items purchased, emails sent, social media posts made or commented upon, locations visited, and faces tagged in photos – as well as everything that other users do with respect to us – is thoroughly tracked, cataloged, and analyzed, enabling advertisers to construct elaborate profiles of our demographics and preferences. These profiles provide advertisers, including lawyers, with unprecedented opportunities to target messages in increasingly granular ways. These opportunities counsel caution lest lawyers venture into territory prohibited by the Rules.

Detailed advertising profiles may one day, if they do not already, enable lawyers to target advertisements for say, divorce representation, to social media users who post about their relationship problems and pose for selfies with individuals other than their spouse (the message content and relevant faces having been identified and parsed by an algorithm). Another, slightly less dystopian tactic is geo-fencing, a technology that uses the location data that smartphones are always broadcasting outward to enable the sending of advertisements to mobile phones that enter specific locations. Lawyers are already using this technology to beam advertisements to individuals visiting hospital emergency rooms, arguably a high-tech form of ambulance chasing.27 Public information, such as case-filing information, has long been used to advertise to potential clients, and lawyers have used traffic crash reports created by police to target individuals who may have been injured in an automobile accident.28 

While nothing in the current version of the Rules would appear to prohibit such highly specific advertisements, this may be because for now, Illinois takes a more “hands off” approach to policing the content of lawyer advertisements. The Rules call “[q]uestions of effectiveness and taste…matters of speculation and subjective judgment,” and decline to attempt to “forecast the kind of information that the public would regard as relevant.”29 However, this may change as larger concerns about privacy and the use personal information for advertising purposes grow in public prominence.30

Conclusion
The Internet provides lawyers with a larger tool set for communicating with the public, and increasingly, with specific individuals. The pace of change in this arena will likely occasion future amendments to the Rules and their comments. In the meantime, common sense measures and caution should prevail. Lawyers should apprise themselves31 of existing and emerging means of online communications and their ethical implications and those with specific questions should consider contacting the ARDC’s Ethics Inquiry Program32 lest they, in an unwelcome partnership with the ARDC, unwittingly provide additional compliance guidance to the rest of the Illinois bar in the context of a disciplinary proceeding. Solicitor beware! 


1. Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

2. For example, the GIF image format was invented in 1987, Amazon.com went public in 1997, and Apple announced the first iPhone in 2007.

3. The recent amendments to the Rules and their comments replace “prospective clients” with “the public.” See generally, Supreme Court of Illinois, Rules of Professional Conduct (as amended J, available at http://www.illinoiscourts.gov/SupremeCourt/Rules/Art_VIII/default_NEW.asp (last visited July 17, 2018) (endorsing use of disclaimers so as not to mislead “the public”).

4. Rule 7.3 at [1].

5. Rule 7.3(a).

6. See id. at [4] (acknowledging “far less likelihood” of abusive practices when lawyer “motivated by considerations other than…pecuniary gain” and carving out participation in “constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries”); but see id. at [5] (noting that “even permitted forms of solicitation can be abused” and highlighting prohibitions against “false or misleading [communications] within the meaning of Rule 7.1” and those involving “coercion, duress or harassment within the meaning of Rule 7.3(b)(2)”).

7. Id. at [2].

8. Id. at [3].

9. Id.

10. Rule 7.2 at [5].

11. See In re Robert Kenneth Lock, Jr., Comm’n No. 2010PR000164 (Rev. Bd. Aug. 1, 2013) (improper fee-sharing arrangement with non-lawyer referral generators violated Rule 7.3); In re Robert Denton Smith, Comm’n No. 2012PR00096 (Consent Pet. May 22, 2013) (same); In re Karim G. Dure, Comm’n No. 2012PR00137 (Hearing Bd. July 29, 2013) (same); In re Christina Gilbert-Manuel, Comm’n No. 2013PR0093, S. Ct. No. M.R. 26617 (Consent Pet. May 16, 2014) (same).

12. Rule 7.2 at [5].

13. Id. (internal parentheticals removed).

14. Id.

15. See Rule 7.2 at [2] (permitting “public dissemination of information concerning a lawyer’s name or firm name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.”); but see Rule 7.1 at [3] (Truthful reports of a lawyer’s past achievements “may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters…”).

16. Such communications highlight other ethical concerns. See, e.g., Rule 7.2 at [5] (highlighting applicability of Rules 5.3 and 8.4(a)). If nonlawyers conduct the communications, Rule 5.3 requires that lawyers “make reasonable efforts” to ensure that the nonlawyers conduct complies with the lawyer’s professional obligations. See Rule 5.3(a), (b). In certain circumstances, nonlawyers’ misconduct can be imputed to the supervising lawyer. Rule 5.3(c); see also Rule 8.4(a) (professional misconduct for lawyer to “violate or attempt to violate the [Rules], knowingly assist or induce another to do so, or do so through the acts of another.”).
Additionally, such communications could constitute consultations giving rise to lawyers’ duties to prospective clients. A substantially revised second comment to Rule 1.18 notes that “a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response…” Rule 1.18 at [2] (emphasis added).
Finally, the Internet’s capacity to connect people from all over the world means that an Illinois lawyer may thereby easily communicate with individuals living in jurisdictions in which the lawyer is not licensed to practice law. The Rules “do not authorize communications advertising legal services to prospective clients in [Illinois] by lawyers who are admitted to practice in other jurisdictions.” Rule 5.5 at [21]. The Rules also prohibit an Illinois lawyer from practicing law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” Rule 5.5(a). Taken together, these Rules caution against communicating with individuals who reside outside of Illinois without prior research into similar restrictions in the state in which the individual resides and taking early steps to confirm the jurisdiction of residence of individuals with whom the lawyer communicates online.

17. Rule 7.3 at [1].

18. See Rule 7.3 at [2].

19. See Rule 7.3(a); see also id. at [3].

20. See Rules 7.1, 7.2, 5.3, 5.5; see also note 16, supra.

21. Rule 7.3(c).

22. Rule 7.2 at [8] (“The requirement in Rule 7.3(c) that certain communications be marked “Advertising Material” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors.”) (emphasis added).

23. Rule 7.2(c).

24. Aliza Rosen, Twitter, Inc., Tweeting Made Easier (Nov. 7, 2017) https://blog.twitter.com/official/en_us/topics/product/2017/tweetingmadeeasier.html (last visited July 21, 2018).

25. See Rule 7.1 at [2]; see also Rule 4.2 (regarding duties to unrepresented persons); Rule 4.3 (regarding duties to persons represented by counsel).

26. See note 16, supra (regarding Rule 5.5).

27. National Public Radio, Digital Ambulance Chasers? Law Firms Send Ads to Patients’ Phones Inside ERs (May 25, 2018) https://www.npr.org/sections/health-shots/2018/05/25/613127311/digital-ambulance-chasers-law-firms-send-ads-to-patients-phones-inside-ers (last visited July 17, 2018).

28. Jonathan Bilyk, Cook County Record, Lawyer Sues Schaumburg Cops, Says Must Include Names, Addresses on Crash Reports Used to Solicit Clients (Oct 20, 2017) https://cookcountyrecord.com/stories/511249388-lawyer-sues-schaumburg-cops-says-must-include-names-addresses-on-crash-reports-used-to-solicit-clients (last visited July 18, 2018).

29. Rule 7.2 at [3].

30.
See Lee Raine, Pew Research Center, Americans’ Complicated Feelings About Social Media in an Era of Privacy Concerns (Mar. 27, 2018) http://www.pewresearch.org/fact-tank/2018/03/27/americans-complicated-feelings-about-social-media-in-an-era-of-privacy-concerns/ (last visited July 21, 2018) (highlighting a 2014 study that found “Six-in-ten Americans (61%) have said they would like to do more to protect their privacy. Additionally, two-thirds have said current laws are not good enough in protecting people’s privacy, and 64% support more regulation of advertisers.”).

31. See Rule 1.1 at [8] (“lawyers should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”) (emphasis added).

32. Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois, Ethics Inquiry Program, http://www.iardc.org/ethics.html (last visited July 21, 2018).

Jordan M. Sartell is a graduate of the DePaul University College of Law. His practice with Francis and Mailman, P.C. focuses on prosecuting class action claims under the Fair Credit Reporting Act and other consumer statutes. Jordan volunteers with the Willow Creek Community Church Legal Aid Ministry and is a member of the National Association of Consumer Advocates.