Ethics Matters

Mark Dubois: I Don't Recommend It

, The Connecticut Law Tribune

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Mark Dubois
Mark Dubois

The Connecticut Bar Association Ethics solons have proposed a change to our advertising rules adding language to the commentary to Rule 7.2. The proposal, taken from the American Bar Association model rule, includes a definition of "recommend." In rule regimes, the devil is often found in the details, and the devil in Rule 7.2 is that it prohibits paying another to recommend a lawyer's services.

The thesaurus tells us that synonyms for recommend include advocate, back, confirm, endorse, favor, justify, praise, prescribe, propose, suggest, uphold, urge, acclaim, advance, applaud, celebrate, commend, compliment, counsel, enjoin, esteem, eulogize, exalt, exhort, extol, glorify, laud, magnify, plug, prize, sanction, second, steer, value, go on record for, put in a good word for, speak highly of or vouch for. The proposed definition of recommend is a functional one: "(a) communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities."

Considering that all advertising is by definition self-aggrandizing, lawyers who advertise for themselves can say pretty much anything that is not false or misleading or otherwise runs afoul of the rules, such as by claiming an unrecognized specialization or a certification not held by the lawyer. (The Connecticut Bar Counsel's website contains a number of advertising decisions of the Statewide Grievance Committee that help define the line between permissible and sanctionable conduct.) So it is OK to recommend yourself. The rub comes when you pay to be included on legal advertising or "matching" websites run by others. Rule 7.2(j) now allows us to participate in these schemes, as long as we don't break any rules.

A quick trip to "the Google" with the search term "find a lawyer" brings a host of such services. Here are some of the tag lines:

• We Immediately Match You with the Right Lawyers

• We have Lawyers Nationwide Who Specialize in Almost All Legal Disciplines

• Find the Best Attorney in…

• Find 100's of Expert Lawyers

• Best Lawyers-Linking Lawyers and Clients Worldwide

If a consumer were to be paired with a participating lawyer, would they be likely to think that the service was, either explicitly or implicitly, vouching for or endorsing the lawyer because they were "right for," "best," or "expert"?

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