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Lawyers have been advertising their services since 1977, but 2004 may be remembered as the year legal advertising exploded on the Internet. What was special last year? Vioxx. Several lawyers said they have never seen anything to rival the ads on the Web promising to help consumers injured by Vioxx retain counsel. Other ads take aim at Celebrex, a drug manufactured by Pfizer that is similar to Vioxx and that, a recent study suggested, may present similar risks. Many lawyers see the Web as the wave of the future for this kind of marketing. It can reach a highly targeted audience and is far less expensive than radio or television. And, they add, it’s effective. If it is, in fact, the profession’s future, it comes with a few clouds on the horizon. Some lawyers are irritated by the middlemen: companies that pay for top spots on the lists that Google and Yahoo spit out when potential clients type in “Vioxx” or “Vioxx lawyer.” These companies clog the lists and bid up prices, the lawyers complain, when coveted search terms are auctioned off. There may be another problem few lawyers have focused on. Some of the companies act as brokers selling leads, and these may do more than cause lawyers irritation. Depending on what prospective clients are promised and how lawyers contact them, these referrals could lead to disciplinary inquiries to determine whether lawyers accepted improper referrals, solicited business or aided a company’s unauthorized practice of law. Finally, a recent case illustrated that in many ways the Internet is still the “Wild West” in which lawyers’ reputations may be tarnished by scam artists. 20 million strong Two factors prompted the Vioxx frenzy. Last September, Merck & Co. pulled the arthritis drug from the market. A few hundred lawsuits had already been filed, but a feeding frenzy ensued. And the reason had a lot to do with the second factor. About 20 million people nationwide used the product, which racked up $2.5 billion in sales in 2003. The number of potential claimants is far larger than in the Dalkon Shield litigation (2.8 million), silicone breast implants (2 million) or even fen-phen (more than 6 million). And plaintiffs’ lawyers took notice. Lawyers have been advertising in all media, but the Web advertising has been particularly intense. Law firms that have previously shied away from advertising on the Web have found the opportunity irresistible. “I’ve never seen a single issue pursued as aggressively,” said William Hornsby, speaking of the Vioxx Web campaign. As a staff lawyer at the American Bar Association, Hornsby has followed the ethics of legal advertising since 1977. “We are convinced this is the most efficient and most effective way to have clients find us,” said Thomas Kline, a name partner at Philadelphia’s Kline & Specter. Although his firm has had a Web site for some time, it had never delved into Web advertising, he said. Vioxx changed that. “They can’t hire you unless they know that you are available and doing this kind of work,” he continued. Potential clients get to learn more about the firm through its Web site, and the information they submit when they fill out the firm’s online form allows lawyers to conduct a preliminary evaluation of their claims. The advertising also attracts the attention of lawyers who have cases to refer. “Today, it’s one of the most efficient places to get business,” said Arthur Luxenberg, name partner at New York’s Weitz & Luxenberg. His firm also has been running television and radio spots. “The beauty of the Web,” he said, “is that expenses are really a fraction of what your expenses are in the other media.” The downside, he added, is that it can be confusing to navigate for consumers and lawyers alike. “You can be the best lawyer, handle these cases and have a great Web site. When a potential client is looking for a lawyer that directly suits your needs, he may never come up with a lawyer at all.” Instead, he may get a referral company. It’s like surfing the Web to buy a Chevrolet and finding you’ve landed a broker, he complained. Paying piper, gaming Google Len Muscarella of Interactive Media Associates has helped a wide variety of professionals, including lawyers, create Web sites and advertisements. The special attraction of Web ads is that they are “the most directed,” he said. “If you’re looking up immigration law, it’s probably because you or someone you love has a problem,” he said. There may be a few schoolchildren doing homework, but in general you’re talking to your intended audience. That’s not nearly as true of television, radio or print ads. There are two ways to reach clients through search engines like Google, he explained. You can pick a search term like “Vioxx lawyer” and put down a bid. The top bidders are listed as “sponsored links” at the top of the list, or in the right margin. You pay each time a person clicks through to your site, regardless of what happens when they do. Muscarella said rates vary dramatically. He said he’s seen winning bids of a nickel and a dime. The highest he could recall was $10. Luxenberg said he thought the top bid for the best Vioxx terms was $30, and it may have gone higher. The other way is to try to “game the system” so that a firm’s Web site comes up naturally when a consumer plugs in the search terms. Clicks are free, though lawyers sometimes pay consultants like Muscarella’s agency to “optimize” their sites. Google is notoriously hard to game: It frequently changes the criteria and results can never be guaranteed, Muscarella said, but some factors are known. The number of sites linked to yours is one important factor. A site with lots of information and blogs about Vioxx is an attractive destination for others to link to, and is likely to come up high on the list. Kline’s firm often appears at the top of the sponsored heap. Luxenberg’s firm also pays for placement in the sponsored links. What frustrates him is that his firm is outbid by brokers that sell them leads from people who might have clicked directly on his firm if the list weren’t clogged with brokers. These sites pose ethical questions for lawyers that few seem to have considered. The ABA’s Hornsby said that if brokers’ sites presented legal advice, they would be engaging in the unauthorized practice of law, and lawyers who aid them could find themselves subjects of disciplinary inquiries. Furthermore, said James Grogan, president of the National Organization of Bar Counsel, whose members enforce the ethics rules that regulate the profession, in most states it’s inappropriate for a lawyer to pay for a recommendation. And it is reasonable to ask whether selling a lead constitutes a recommendation, he said. Also, if the potential client does not express a desire or willingness to be contacted before a lawyer phones, the lawyer may be guilty of improper solicitation (Rule 7.3 in the ABA’s Model Rules of Professional Conduct). The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline issued an advisory opinion in April 2001 that addressed these issues. “When an attorney is contacted by a law-related commercial Web site company that offers to make available, in some manner, the attorney’s name, address, phone number, area of practice, or other information to potential clients in exchange for the attorney providing compensation to the company, the attorney must be extremely cautious,” the board wrote (opinion 2001-2). So far these issues have been mostly theoretical. Neither Grogan nor Hornsby knew of any formal complaints. “I haven’t heard any chatter about it” through his organization’s listserv, he said. The one instance in which lawyers were publicly criticized for Web advertising said more, as it turned out, about the difficulty of governing the Internet than it did about the behavior of lawyers. At a Senate Finance Committee hearing in November, U.S. Senator Orrin Hatch, R-Utah, read from the text of a Web page that was titled, in large, bold letters: “Get Your Million Dollars From Vioxx Lawsuit.” The author of this page offered to sell a document for $100 that “guaranteed a Monetary Compensation.” He promised to show “how an average person can benefit from this Once-in-a-Lifetime Opportunity to become a millionaire.” He then suggested readers seize the opportunity to buy Vioxx, which would allow them to sue both Merck and the pharmacy “for selling recalled products.” Unauthorized link The page included links to about 20 law firms, one of which was the firm of Kenneth Suggs, the president-elect of the Association of Trial Lawyers of America (ATLA). Though Hatch didn’t name the firms, his outrage was clearly directed at them. Suggs and his firm first learned of the link later that day, he said, when a friend informed him. Apparently, none of the firms knew of the links. According to ATLA, the Web site was produced by a Canadian resident with ties to China who calls himself “Leon Master” and whose other ventures include picking hot stocks. A request for an interview e-mailed to an address on one of his sites drew no response. After Suggs and others complained, the law firm links were removed. The site is still up and running ( http://vioxx.x.yi.org), though the language has been toned down some. It’s still a site “no lawyer would be associated with,” said Suggs. “To the extent that Senator Hatch or others see this and think this is a lawyer ad,” he said, “it gives us a bad name that we don’t deserve.” Feeling vulnerable The experience has left him feeling vulnerable, Suggs said, because lawyers practicing today need to have Web sites, and now he knows how easy it is for someone to, in effect, misappropriate one. He wishes there were some way to control or discipline the person responsible for misusing his firm’s site, and he recognizes the irony that his firm could have been subject to a disciplinary inquiry while “Master” apparently escaped unscathed. But he still sees a bright future for Web advertising, Suggs said. “I think Web advertising is more effective for the consumer than other legal advertising.” Not only can potential clients review a firm’s description of itself in a way other media don’t permit, he pointed out, they can then search the Internet for independent verification. Hechler’s e-mail address is [email protected].

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