Proposed Ethics Advisory Opinion R-25
A proposed advisory opinion by the State Bar of Michigan Professional Ethics Committee concludes that participation in a for-profit online matching service that matches prospective clients with lawyers for a fee is not ethically permissible if the attorney’s fee is paid to and controlled by a non-lawyer and the cost for the online matching service is based on a percentage of the attorney’s fee paid for the legal services provided by the lawyer. Read More
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It is high time. Frankly, it doesn’t go far enough. I think the practice this rule addresses is already covered by other rules, but this certainly makes clear to all that this type of business practice is unethical.
There should be no change in the present posture of the State Bar.
I am concerned that for-profit online matching services provided by non-lawyers would harm the public. Have you ever needed to find an attorney for a member of the public? Think about what you do to insure you help that person find the attorney(s) who *best* meet the person's particular needs. You might listen to the person's problem, ask legally relevant questions, including, for example: whether the person is more inclined to mediate than litigate; the county, judge and opposing counsel involved in the matter; facts that would help you as an attorney get an idea of how viable the person's potential case is and whether the person's problem can even be solved in a legal forum versus another avenue; and what kind of financial resources the person has to pay an attorney. Such questions help us select the best referrals for that person. Without a legal education and experience practicing law, it seems like there would be many cases where the non-lawyer entity would make the match and get paid for the referral, but the quality of the referral is poor, perhaps based solely on the attorney's self-identified practice areas and whether the attorney will pay the referral fee. If a for-profit matching service controlled by a non-lawyer were determined to be ethically permissible, it would seem appropriate to me to statutorily or via licensing regulations apply all lawyer ethics rules to that service and regulate that service as if it were lawyer-controlled.
Please adopt the proposed opinion.
Stephen M. Gaus
I am in favor of the opinion.
I believe the proposed opinion is spot on.
Becket J. Jones
Thank you for typing this up. Have argued about this over the phone with solicitors for a few years.
I support the conclusion of the proposed opinion. I would go further and include a prohibition on any matching services that have any direct influence on fees charged by an attorney. About 20 years ago, I was contacted by a referral service who said that I would promise to reduce my hourly rate by 20% (or thereabouts). The phone rep from the service said, "... and we don't ask what your actual rates are, if you get my drift" (or similar words). The clear implication of the call was that I should either raise my rate across the board, or lie to the members of the service who called me about what my normal rate was versus what they would be paying with their "discount." Needless to say, I did not enroll with the matching service. At this point, I cannot recall the name of the service. I doubt they are still in business.
Jay R. Drick
I agree with the opinion to make these violations of ethics, please protect the public.
I support the proposed advisory opinion.
The Proposed Opinion appears well reasoned. I fully support its issuance and firmly oppose any amendment of MRPC to permit attorney participation in the so-called "services" identified in the Proposed Opinion.
I fully support Proposed Ethics Advisory Opinion R-25. For-profit online matching services may be perceived by the public as possessing legal knowledge and/or expertise, which is both erodes the legal profession and infringes upon the attorney-client relationship (fee structures, etc.). The practice of law must remain independent of relationships which arguably place the profession subservient to for-profit marketing (matching) companies.
I can only say that there is a real need to encourage such paid services. My two experiences in attempting to deal with personnel at the free service operated by the MSB was like dealing with the Nazi Gestapo. Merely suggest that you would like to interview the attorney they recommend, and the response literally and instantly was “Thank you then, good bye.” If you question a word they say, they refuse to help you. Arrogance in the extreme. We need competition among such services to be effective, and much easier rules governing the firing of civil servants.
Lawyer referral services are becoming more active in contacting attorneys. Some charge an up-front fee while others take a percentage of the recovery. Steps should be taken not to just issue an ethics opinion, but take the effort to require these firms to be registered and their fee structure stated.
Violates Rule 6.3(b), which prohibits a lawyer from participating in for-profit lawyer referral services; Violates Rule 5.4, which prohibits a lawyer from sharing fees with a non-lawyer. I have a sense that these rules favor those who already have clients and/or are part of the legal community. New lawyers with little or no connections would benefit from referral services. I also feel that second violation does not reflect the current need of lawyers and psychologists for example to work closely or lawyers and other professionals. I believe the Ethics Committee could come up with a set of guidelines to make all of this clear and to make all of this ethical. If one of the fears is that the lawyers would pass on the legal fee to their clients, I don't see how this is different from larger firms and those firms with beautiful offices, passing on the fee to their clients. I would like to see an open discussion of these ethics changes and I would like the Bar to be open to the current lifestyle of young and struggling lawyers.
Sherry A. Wells
The part about percentages is definitely wrong. I analogize to handling probate estate matters based on a percentage, which went out of Michigan practice a long time ago. In contrast to injury cases, where there is a risk of losing, and winning cases permit a lawyer to handle ones that are riskier, to the benefit of clients, this service takes no risk. I trust my colleagues to ring in on other aspects.
I agree with the opinion. There is a problem in our profession of "finders" expecting to receive a kick-back of some portion of the fee earned by the attorney without disclosure and consent of the client--and not just from contingent fee plaintiff cases. It is unbelievable that so many lawyers who refer hourly matters to lawyers with expertise make their referral decisions based on the referral fee they can receive, and don't know or disagree that the referral fee must be disclosed and approved by the client.
I am really torn on this issue. On the one hand, I do not feel that it is appropriate for the Bar to be trying to regulate private businesses or controlling with whom a lawyer shares a fee. Ideally, the MRPCs involving those issues should be trimmed down or eliminated entirely. On the other hand, there are a lot of scam-companies out there taking advantage of lawyers. Companies like Nolo and Avvo, which sell (often bogus) leads in exchange for money, should be shut down. Not only are they ripping off lawyers who don't know any better, but they are tricking consumers into becoming leads. A consumer who visits a Nolo website, for example, will get a pop-up asking them if they need any help. If the consumer types their question into the popup, it turns into a lead and gets forwarded to a lawyer. The consumer didn't know they were signing up to become a lead and get contact by a lawyer, and the lawyer doesn't know that the consumer wasn't looking for a lawyer. In the end, the lawyer wasted some time, the consumer got frustrated, and Nolo got $30. While the Bar should not be interfering in how a lawyer runs a business or handles an already-paid fee, the Bar probably should be interfering in order to protect consumers from companies like Nolo or Avvo.
I favor the proposal.
I support Proposed Ethics Advisory Opinion R-25. We are in times where new business models will challenge our bedrock ethical principles, including independence and devotion to the interests of our client and justice. The proposed opinion offers much-needed guidance.
I strongly agree with the proposed Advisory Opinion.
As explained in the State Bar post, the opinion seems very much in line with traditional ethical guidelines. However, the future will not be kind to practicing lawyers if we ignore the vast demand for legal information, perhaps as opposed to advice, which goes unanswered because of price. We are trained and licensed as surgeons, while much of the demand is for applying band-aids. There is a need, and the solution will probably come from the legislature, not the State Bar, for re-thinking classifications of legal assistance to create places where lesser-trained people (and robots) can provide such information and assistance. Until the State Bar leads the effort in that direction, stop-gap efforts such as the path proposed by the ethics opinion will lead down a blind alley to the detriment of the profession. It seems in our best interest to define our future ourselves rather than allow the legislature to do it.
The proposed opinion looks fine. The last thing Michigan lawyers need is a for-profit service lining up potential clients for the lawyers. The public is already bombarded with personal injury lawyer advertisements on TV, radio, and billboards, and ramping up more advertisements with the new for-profit service will not improve anything.
I agree with the proposed opinion.
I fully support the advisory opinion.