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"?

The devil in Internet marketing is found in the terms of service. The terms of service for many of these sites disclaim any pretense that they are making any recommendations as to the quality, qualifications or suitability of the lawyers for any particular purpose, despite what the headline text of the site may otherwise suggest (or say). Some do aver that they checked, and that the lawyer, on the day she or he enrolled in the service, was licensed to practice law somewhere, but warn that this information is subject to change and should not be relied upon. Of course, this raises the interesting question of whether the sole credential to determine suitability is that the subject lawyer have a law license, but maybe I am reading this stuff too literally.

Reasonable persons disagree as to whether any regulation of lawyer advertising makes sense. Some argue that other than proscribing false or misleading statements, which are already prohibited by consumer protection regimes, lawyer advertising regulation is redundant, superfluous, and probably unconstitutional. I read that a law firm in Florida recently filed suit against bar regulators there on pretty much this basis.

Others have never recovered from Bates v. Arizona, wherein the Supreme Court first allowed any lawyer advertising. They worry that unfettered commercialism erodes public confidence in the profession and must be restrained. Or maybe they simply worry that if they don't sink to the lowest common denominator with regard to advertising they will lose market share to those who do, and seek to restrain competition by imposing regulatory hurdles. I don't know.

I have always wondered if any of the public are fooled by any of these advertising tropes, so I went to Ripoff Report, a website which allows consumers to post complaints. There were over 1,200 complaints about lawyers, and even some about lawyer matching services. Some complain that the lawyers' advertising was misleading.

Then I noticed a button on the site titled "Legal Resources." I found the following:

"Every day consumers ask Ripoff Report staff for lawyers and law firms in their area, seeking referrals on every topic from accidents and injuries to bankruptcy, Class Actions, trademarks and divorce attorneys. Why? Because Ripoff Report has millions of loyal users, and they trust the Ripoff Report to help them out."

For a price, I could be listed as a referral attorney for unhappy consumers in my zip code. But would I be recommended?

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