Proposed Ethics Opinion on Pay-Per-Lead Advertising

If you’re thinking of signing up for an online advertising service where you pay to get client leads, better read this proposed NC Bar opinion before you do.

Under Proposed 2021 Formal Ethics Opinion 5, lawyers can’t ethically participate in a pay-per-lead program if the vendor records communications between the lawyer and potential client.

The opinion says lawyers who advertise through outside advertising services have an obligation to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional responsibilities. The pay-per-lead vendor in the underlying inquiry did not meet that standard because it recorded and retained conversations between the lawyer and the prospective client.

This violates the Rules of Professional Conduct 7.1, which prohibits false and misleading advertising, according to the opinion.

Read the full text of the opinion here.

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Proposed 2021 Formal Ethics Opinion 5

The inuiry: “A search engine company (‘company’) offers service providers pay-per-lead local service advertisements (LSAs) designed to connect consumers to service providers in their immediate area. For example, a search with the keyword phrase ‘family lawyer near me’ would trigger the display of LSAs from family lawyers close to the consumer’s geographic location…. Unlike other pay per lead advertisements, LSAs do not link to the participating lawyer’s website. A lawyer’s LSA links to a profile page created by the company. The profile page provides an overview of the legal services provided by the lawyer and displays the same call button displayed on the LSA. The phone number activated by the call button is not the lawyer’s number, but rather a number assigned to the lawyer by the company. All phone calls initiated through the lawyer’s LSA or company profile page are routed through the company. A lawyer participating in the LSA program authorizes the company, its affiliates, and their agents to access, monitor, and record communications initiated through the program. The lawyer also authorizes the company to disclose the communication to third parties. Recorded communications are kept by the company for a period of 60 days before they are erased.

A phone call routed through the company to a lawyer plays a ‘whisper message’ prior to connecting the call alerting the lawyer that the call is from the company, will be recorded, and may not be privileged. Potential clients hear a whisper message prior to the call being connected stating that the call is being recorded and is not confidential.”

Question: Do the Rules of Professional Conduct permit a lawyer to participate in the company’s LSA program?

Answer: “No, because the LSAs do not sufficiently inform consumers about the circumstances and implications of the consumer’s use of the LSA to facilitate communication with the lawyer in violation of Rule 7.1.”

Here are some highlights from the opinion:

• “[C]ommunications through a lawyer’s LSA are routed through the company. During the routing process, the company records and retains the communications. However, there is no indication on a lawyer’s LSA, or the lawyer’s company profile page, that all communication with the lawyer will be routed through, recorded, and retained by the company. Similarly, there is no indication that the company may share the communication with additional third parties.”
• “A third party’s recording and retention of these conversations, as well as its access to and potential disclosure of conversations between consumer and lawyer, raise consumer protection concerns and heighten the need for clear and full communication.”
• “A consumer seeking a conversation with a lawyer concerning legal services – regardless of the medium or platform of the conversation – should be given adequate, clear, and advance notice if the conversation will occur outside of the reasonable expectation of a consumer, to wit: the conversation will be exclusively between consumer and lawyer and/or a member of lawyer’s staff. A consumer using an LSA as described herein to facilitate their conversation with a lawyer about potential legal services should be given adequate, clear, and advance notice that the conversation will be recorded, retained, and potentially disclosed (without their knowledge or consent) by a third party.”

Source: NC State Bar

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