Dubois-Mark
Attorney Mark Dubois ()

The Indiana Supreme Court recently reprimanded a lawyer for participation in a lawyer-client matching scheme, writing the latest, though clearly not the last, chapter in the saga of pounding the square pegs of lawyers’ ethics rules into the round holes of technology.

The lawyer involved, who had practiced for 40 years without incident, ran into trouble when he signed up for something called Law Tigers, a legal advertising program run by something called the American Association of Motorcycle Injury Lawyers. This one seems to operate as do many, where the lawyers buy either a zip code, a census track or some other geographical area and receive the contacts generated by national advertising.

The problem with national advertising, and the problem for the Indiana lawyer, is that lawyer ethics are regulated by 51 different domestic jurisdictions. This makes cross-border advertising programs devilishly complex to create and administer. The Law Tigers site had some testimonials. They were about as laudatory as what you find on eBay. (Good stuff! Great prices! Fast service!) Apparently, in Indiana, as in some other states, client testimonials are verboten. The poor Law Tigers participant tried to disclaim that part of the program on his own website, but to no avail.

As with most lawyer advertising complaints, there appears to be no indication any client was harmed or fooled. Most of the public are able to sift through advertising puffery, and I doubt they need someone protecting them. They understand that beer does not make you more attractive to women, that spending hundreds of thousands of dollars for a car which will go 200 mph will not make you younger, and that you are not going to find the best lawyer by using the Google.

One area where lawyers have been getting into trouble with these national campaigns deals with lead selling. Rule 7.2 allows lawyers to participate in advertising programs, but prohibits paying someone to recommend their services. The American Bar Association Ethics 20/20 solons tried to clarify some of the issues by adding a definition of recommend to the rule, and also language discussing how lead-buying is different from unethical paying for recommendations. Some of the proposed changes are good, but I have concerns about the lead-selling stuff.

Connecticut has a statutory scheme that makes it a felony to pay or receive money for recommending the services of a lawyer. It is an old law (1957) which grew out of the bar’s concern about some “ambulance-chasing” personal injury lawyers. The statute reflects its vintage, speaking of tow truck drivers, ambulance attendants and similar others who might be engaging in this practice. No one at the time could have dreamed of the internet and what the 21st century equivalent of ambulance chasing might look like.

Once in a while, I get asked to work with a client on lawyer advertising. I usually tell them just to pay the $50 to get an advisory opinion from the Statewide Grievance Committee, but occasionally I get to do some real work. Even though I am told it is possible to limit who sees an internet lawyer ad, for all practical purposes, once a website, a YouTube video or an ad is placed into the stream of electronic commerce, it is impossible to limit where it goes. Thus, I have to continually warn that my advice is limited to Connecticut law, and that unless they want to pay me lots of dough to do a 50-state analysis of both the advertising and unauthorized practice rules, it is better to clearly limit the audience for the ad to the state where the lawyer and I am licensed.

We all know that phone book advertising is not as efficacious as it once was, due, in no small part, to the fact that fewer and fewer folks have land-line phones. Print ads also seem to also have lost their punch, probably due to the fact that fewer and fewer of us read newspapers or magazines. Electronic advertising seems to be the way merchants and consumers match up these days, from TV ads to pop-ups on your cell phone. But electrons have no sense of geography, and the perils of national advertising programs will continue to vex us until local regulation is supplanted by a national regime.

Maybe we should press for a federal law regulating lawyer advertising which preempts state efforts. The alternative, especially for folks like the poor Indiana lawyer, is to continually learn how complex an uncoordinated national regulatory scheme really is.•