BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1999-3

(Inquiry No. )

Topics:
Permissibility of attorney’s participation as “Sponsor” or “Lead Counsel” of Internet advertising service providing information to inquirers about particular fields of law with references to Internet sites containing discussions concerning the law
Digest:
A lawyer may advertise as a “Sponsor” on an Internet legal. information and advertising service, provided that (1) the service does not in any way state or suggest that the information to which the inquirer is referred was prepared or is being compiled by the “Sponsoring”– attorney, (2) the format in which the Sponsor’s name is presented does not suggest that this attorney is being recommended or endorsed by the service, (3) the Internet service makes clear that the attorney’s name appears, in response to the inquirer’s request, as an advertisement, and (4) the “button” or “link” provided by the service does not create a “real-time” dialogue with the Sponsor, but is limited to permitting the inquiring person to view the Sponsor’s website. That part of the Internet service which highlights attorneys paying a premium advertising fee as “Lead Counsel” is, however, susceptible of being understood to mean that Lead Counsel are superior to other attorney and is therefore misleading and improper.
Code Provisions:
DR 2-101 (A), (D), (F)
DR 2-102(A)(2), (D)
DR 2-103(B), (D)
DR 2-105(A), (B), (D)
DR 2-107
DR 3-101(B)
Facts Presented:
An Internet advertising service provides inquirers seeking information about particular fields of law with references to sites on the Internet where web users can find (a) discussions concerning the field of law and (b) lists of attorneys practicing in the field they are inquiring about and in the inquirers’ geographical areas. The service permits attorneys practicing in a particular field of law, in consideration for paying a fee, to be listed on a “banner”, on the website screen providing the information concerning the field in question as a “Sponsor “, of that information service.

In return for an additional fee the attorney is also provided a “button ” or “link ” on the screen. By clicking on this button or link an inquirer may view the attorney’s website if the inquirer so chooses. The service also provides lists of attorneys in a given area of practice from available directories summoned up from Westlaw, Martindale-Hubbell and other legal directories. These lists appear in alphabetical order, but attorneys who pay more have their names placed out of order at the head of the list and are identified as “Lead Counsel.” The service stores hard copies of each Sponsor’s ad and supplies them to the attorney for his records. The service limits participation as a “Sponsor “, of its services to a single practitioner per specified field of law and geographical area per time period, which may vary depending on the attorney’s contract. As a general rule contract periods for sponsorships are sold for one-month periods.
Inquiry:
May an attorney participate in such an Internet advertising service if the attorney pays to be listed or highlighted as a “Sponsor” or as a “Lead Counsel”?
Determination:
Yes as to “Sponsor” and No as to “Lead Counsel “. This form of Internet advertising is permissible under the New York Code of professional Responsibility, provided the lawyers and Internet service comply with the conditions set forth below, but to list certain attorneys as “Lead Counsel” is potentially misleading and therefore improper.

A. Does this Internet service constitute improper solicitation of legal business with the aid of a third person in violation of the prohibitions of N.Y. Judiciary Law § 479 and 482 and Disciplinary Rule DR 2-103(B)?

Except for the “Lead Counsel” aspect of the service, which may be deemed misleading under amended DR 2-1 01 (A), the advertising arrangement described above does not violate the prohibition in amended DR 2-103(B) against compensating or employing lay persons to solicit clients for an attorney or to recommend or promote an attorney’s services to prospective clients, except as authorized by specifically approved lawyer referral organizations as listed in amended DR 2-103 (D). To avoid any possibility of misunderstanding, however, the service must add a disclaimer that the Internet service is not an attorney referral service, does not make recommendations or endorsements of the use of any attorney’s services and that the “Sponsor “-attorney did not prepare or compile the legal information being provided by the Internet service.

B . Does an attorney, participating as a sponsor of this internet service violate DR 2- 105(A) barring a lawyer from holding oneself out as an expert or specialist in a particular field of law?

The advertising arrangement described above does not violate the prohibition DR 2-105(A) against an attorney holding oneself out as an “expert” and “specialist” in fields of law. An attorney may be listed as concentrating in or limiting his or her practice to certain categories or fields of law in the Yellow Pages and other directories, and we do not believe this is any different.

C. Does this form of Internet legal advertising violate DR 3- 1 01 (B) barring the unlawful or unauthorized practice of law in states where the participating attorney is not licensed?

The advertising arrangement described above does not offend the prohibition of DR 3-1 01 (B) against the unlawful or unauthorized practice of law in states where the participating attorney is not licensed, as long as the advertisement identifies the jurisdiction(s) in which the attorney is licensed to practice in accordance with DR 2-1 01 (D).

D. Does this service enable attorneys to comply with the requirements of DR 2-IO I (F) that an attorney file copies of unpublished and non-broadcast advertising and maintain copies of all forms of published, broadcast or written advertisements for at least one year?

The advertising arrangement described above permits the attorney to comply with the requirement of DR 2- 1 01 (F) that an attorney maintain copies of rule advertisements for at least one year and does not fall within the official filing requirement of that rule for private written solicitations.
Analysis:
A. Advertising or Lawyer Referral Services. The Judiciary Law makes it illegal for an attorney “to employ any person for the purpose of soliciting or aiding or abetting in the solicitation of legal business or the procurement through solicitation either directly or indirectly of a retainer, written or oral, or of any agreement authorizing the attorney to perform or render legal services.” N.Y. Jud. L. § 482. ²/

Although we do not usually opine on these laws or interpret issues arising under them, see BANC Ops. 98-1 0; 99-1 n.2, the same principles are basically incorporated in the DRs, upon which we are competent to advise.

DR 2-103(B), as amended effective June 30, 1999, provides as follows:

“A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client … except that a lawyer may pay the usual and reasonable fees or dues charged by a qualified legal assistance organization or referral fees to another lawyer as permitted by DR 2-107 [section 1200.12 of this Part].”

DR 2-103(D), as amended effective June 30, 1999, permits lawyers to request recommendations of the lawyer’s services from “four types” of “qualified legal assistance organization . . . that meets all the requirements” of this rule (Definition (h) of the Code [§ 1200. 1 ]): (1) a legal aid or public defender office, (2) a military legal assistance office, (3) a lawyer referral service “approved by a bar association or authorized by law or court rule,” and (1) a bona fide organization which provides paid legal services to its members or beneficiaries.

If the service in question places an attorney’s name on the screen when an inquirer asks for information concerning a particular field of law but the service does not make clear that the inquirer is looking at an advertisement, in our opinion it would violate the prohibition by implying a recommendation by the service of the particular attorney whose name (and no one else’s) appears there. The appearance of the attorney’s name on the screen, without more, called up by an inquiring person could be understood as a recommendation from the Internet service. An attorney referral or recommendation from an unauthorized for-profit private organization which gives its recommendation in exchange for pay from the attorney is essentially what DRs 2-193(B) and (D) prohibit.

“If a referral service is a for-profit, private corporation the purpose of which is to advertise and solicit clients in exchange for referral fees from lawyers and other professionals, and if that organization does not fall within any of the categories listed in DR 2-103(D), it is not a referral organization from which an attorney may properly accept a referral in exchange for the payment of a fee.” N.Y. City Bar Op. 1994-3.

In the case inquired about here, however, the advertising attorney’s name appears on the screen in the standard Internet advertising format of a banner and the attorney is specifically described as a “Sponsor” of the service from which the inquirer is benefitting. Such a format reasonably indicates that what the viewer sees is a paid advertisement and not a recommendation by the Internet service. To avoid any possibility of misunderstanding, an attorney paying for an advertisement on the service must insist that the service add a disclaimer that it is not an attorney referral service and is not recommending the use of any attorney’s services.

There is a clear distinction between requesting that an organization recommend the use of a particular lawyer’s services, and simply advertising an attorney’s services. Where an attorney employs a medium — whether a newspaper, television, an Internet website, or direct mail to prospective clients — to advertise the availability of legal services (in a manner conforming with DR 2- 1 01) this conduct is protected commercial “free speech” of a kind that various courts have held may not be interfered with. See Bates v. State Bar, 433 U.S. 350 (1977); Koffler v. Joint Bar Ass’n, 51 N.Y.2d 140,412 N.E.2d 927,432 N.Y.S.2d 872 (1980), cert. denied, 450 U.S. 1026 (198 1). See also BANC Op. 98-10, our recent opinion discussing these cases. All that the third-person service does in such a situation is to provide the medium for the attorney to communicate his advertisement directly to the public. No intervention or representation of any kind, express or implied, is made by the provider of the medium, except for the standard compilations or lists of attorneys’ names organized by geographic and practice areas, as in the “Yellow Pages,” Martindale-Hubbell, WestLaw and similar lawyers’ directories.

By contrast, an attorney does not have a Constitutionally protected right to ask third parties to become actively involved in recommending legal services to their customers and other contacts. The same fliers offering such services for closings which are protected as lawful advertising when sent by an attorney directly to homeowners as potential clients, Koffler v. Joint Bar Ass’n, supra, become prohibited solicitation through third persons when they are mailed instead to real estate brokers asking that they recommend the attorney to their real estate customers, Grievance Comm. v. Greene, 54 N.Y.2d 118, 429 N.E.2d 390, 44 N.Y.S.2d 883 (1981), cert. denied, 455 U.S. 1035 (I 982); Matter of Alessi, 60 N.Y.2d 229, 234-3 5, 45 7 N.E.2d 682, 469 N.Y. S.2d 5 77 (1983), cert. denied, 465 U.S. 1102 (1984). See also our BANC Op. 98-10.

The case inquired about here seems reasonably clearly to fall into the former, not the latter, category. There could be serious cause for concern if the same attorneys name, and no one’s else, were permitted to appear as a Sponsor for a particular field of law; since the constant appearance of one name, even as a Sponsor, could become perceived in the mind of the inquiring public as the attorney associated with that field. So long, however, as the service sells its sponsorships for relatively brief time periods and does not make them the exclusive province of a single attorney, no such problem is presented.

It is important that the term “Sponsor” be clearly used by the service with the name of the attorney that it puts on its screen, not only so that there be no implication that the service is recommending the attorney by the service, but also so that there be no implication that the Sponsor wrote or compiled any of the articles or other materials to which the inquirer is referred by the service.

That part of the service which highlights those attorneys who pay a premium to be listed first as “Lead Counsel” is, however, susceptible of being understood to mean that those attorneys are exceptional compared to other attorneys and are recommended as leading counsel. This is improper under DR 2-1 01 (A). See NY State Op. 709 (1998); BANC Op. 98-10 (1998). It is our understanding that the service uses the designation as “Lead Counsel” as a means of identifying which attorneys have paid to be listed at the head of the list out of alphabetical order. A neutral means of identifying such attorneys would be to describe them as precisely that — e.g., “Attorneys Who Have Paid To Be Placed at the Head of the List.” If such a designation is not acceptable, then no designation should be used that tends to recommend them over other nonpaying or lower-paying attorneys.

We do not perceive any ethics problem from the service’s sale of “buttons” or “links” that the inquirer may select to visit the advertising attorney’s website, so long as those buttons do not cause the viewer to communicate directly with the “Sponsoring” attorney or that attorney’s office in a “real – time” dialogue. Websites for professionals as well as business have become a familiar staple of the Internet world and serve a function similar to the “Yellow Pages” and other published advertising media that permit a prospective client to initiate contact with the attorney by e-mail, telephone, facsimile or letter. The same considerations that permit the use of the term “Sponsor ” to advertise an attorney on the Internet service seem likewise to permit the use of website-connected buttons to expand the effectiveness of that advertising.

The advertising service in question seems distinctly different from the promotional service which was found to violate the Disciplinary Rules in N.Y. State Bar Op. 597 (1989). See also BANC Ops. 93-43, 93-32. In N.Y. State Bar Op. 597, inquiring counsel proposed to participate in a television advertising network that placed generic unnamed lawyers’ advertisements for particular fields of law and referring all potential client responses to the ad from a designated geographical area directly to an attorney from that area participating in the ad. The Committee opined that such a program constituted a prohibited recommendation of an attorney’s services, not merely advertising and therefore ran afoul of the Disciplinary Rule that prohibits attorneys from paying third parties to recommend them. The Committee wrote:

“We believe that a program in which an advertising agent runs generic ads for legal services and distributes prospective clients to participating lawyers who have been assigned the exclusive night to cases arising in particular geographical areas is more in the nature of a lawyer referral service than advertising by an individual lawyer. When a prospective client answers the advertisement, the purpose is to be given the name of a lawyer, rather than to contact a particular lawyer….

“The program in question has not been approved by a bar association….Consequently, a lawyer may not ethically request or accept referrals from the service.” (Id.)

The Internet service at issue in the inquiry before us is also distinguishable from the Internet- based service disapproved by the Arizona State Bar Ethics Committee in Op. 9’9-06 (June 1999), summarized in A13A/BNA Lawyers’ Manual on Professional Conduct, vol. 15, no. 13, pp. 342-4:3, July 21, 1999. There the service apparently held itself out as a “clearinghouse for distributing legal questions from potential clients to members [attorneys] who are ‘experts’ in the field” and stated it would … “deliver potential clients directly to you!”… It charges an initial fee, plus a minimum fee for up to thirty referred calls plus additional amounts for additional referred calls, and a percentage of each legal fee ultimately received as a result of referred calls. The service routes the potential clients’ legal questions directly to a particular attorney claiming expertise in that field and is therefore properly characterized as an unauthorized “lawyer referral service.” In our case these features are not present, and there are no fee-sharing arrangements with the Internet service.

B. Advertising Legal Specialties: The Disciplinary Rules prohibit a lawyer from stating the nature of his practice in any professional notices except to state that his practice is limited to or concentrated in one or more areas of law. DR 2-102(A)(2), DR 2-IOS(A).³/ Only a lawyer who is certified as a specialist in a particular area of law by an authority authorized by the New York DRs to determine such specialization may hold him or herself out as a “specialist” in such an area. DR 2- 1 OS(B),(D). Unauthorized representations of specialization are deemed to be misleading, and for an attorney to represent himself as specializing in a particular field or fields of law without the prescribed certification is censurable misconduct. Matter of Peperone, 201 A.D.2d 75, 615 N.Y.S.2d 212 (4th Dep’t 1994).

If the service were to put the name of its advertising attorney on the screen providing the article(s) to which it referred the inquirer without identifying the attorney as a “Sponsor,” the inquirer might reasonably understand that the attorney “specializes” in the field inquired about. Here, however, the service specifically informs the inquirer that the information is being “sponsored” by the attorney whose name he is being shown, in much the same way as radio and television shows are “sponsored” by their commercial advertisers. We believe that the “Sponsor” label in an Internet “banner” context is sufficiently clear to prevent any misunderstanding. We do not think that the attorney whose advertisement appears on the screen is being represented as an expert or specialist or as anything other than a Sponsor who impliedly practices in that field.

C. Out-of-State Advertising: Concern has been expressed that the advertising arrangement here in question may violate DR3-101(B), which prohibits a lawyer in New York from practicing law in a jurisdiction where he is not authorized to practice. Advertising on the Internet is of necessity worldwide, and the website provided by the Internet service will provide the lawyer’s name to any caller from any State (as well as outside the United States). Advertising out of State is not practicing out of State, however. Use of the Internet as another medium for attorney advertising has previously been recognized as proper, notwithstanding the undeniably interstate and international scope of the advertisement so placed, so long as it identifies the jurisdiction(s) in which the lawyer is licensed to practice, in order not to mislead potential clients in other jurisdictions to believe the attorney is authorized to practice where not so authorized. N.Y. State Bar Op. 708 (1998);4/ see DR 2-102(D).

Whether an attorney who participates in such an arrangement properly identifying the jurisdictions in which the attorney is licensed to practice may respond to requests for opinions or information from Internet inquirers from other jurisdictions is not a matter addressed by this opinion. See BANC Op. 98-8 (1998) (New York lawyer may draft trust and estate instruments for Florida resident in consultation with Florida attorney).

D. Retention and Filing Rule for Advertisements: Concern has also been expressed that the arrangement in question offends the requirement of DR 2-101 (F) that a recording of any broadcast legal advertisement be maintained by the attorney for at least one year following its transmission. Opinions of the New York State Bar and the City Bar’s Ethics Committees concur that this rule applies to Internet Websites, N.Y. City Bar Op. 1998-2, and to lawyer advertising on the Internet, N.Y. State Bar Op. 708 (1998). Such advertisements and websites are deemed to be analogous to “broadcast” commercials (such as on radio, TV or cable) or published advertisements (as in newspapers or magazines) and not analogous to privately mailed or distributed communication. Therefore, copies need not be filed with the appropriate Departmental Disciplinary (or Grievance) Committee. Since the Internet advertising service makes and provides hard copies to participants of the Internet ads it posts for them, we conclude nothing in the manner that the: service operates impugns this rule. It Is the responsibility of the individual attorney, in each case, to review beforehand and to maintain the copy that the service provides to him, as it is in the case of any other type of broadcast advertising.

[Approved in substance by Full Committee June 30,1999; approved in form by Exec.Subcomm. July 20, 1999. finally approved by Full Committee September 29, 1999.]

1/
The Disciplinary Rules (DRs) of the New York Lawyer’s Code of Professional Responsibility were most recently amended as binding court rules by the N.Y.S. Appellate Divisions acting jointly, effective June 30, 1999, although not officially published until July 14, 1999. They are quoted and referred to herein as numbered DRs, as well as sections of Part 1200 of Volume 22 of the N.Y. Code of Rules and Regulations (22 NYCRR Part 1200). The New York State Bar Association recently published and distributed a pamphlet containing the DRs, as amended by the courts, together with Ethical Considerations (E(‘-s), as amended by the N.Y. State Bar Association’s House of Delegates in January 1997.

2/
The same activity is also made illegal for the person performing such services for an attorney: “It shall be unlawful for any person or his agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services, or to make it a business so to solicit or procure such business, retainers or agreements.” N.Y. Jud. L. § 479.

3/
An attorney may, within the ambit of this rule, represent that he practices in a given field or fields of law, provided that he does in fact do so. Zimmerman v. Office of Grievance Comm., 79 AD2d 263, 43 8 N.Y.S.2d 400 (4th Dep’t), appeal dismissed and denied, 53 N.Y.2d 937, 54 N.Y.2d 606 (1981).

4/
“[A]ny advertisement by a lawyer on the Internet that may reach potential clients in jurisdictions where lawyer is not admitted to practice must clearly identify the geographic limitations of lawyer’s practice or risk being misleading.” N.Y. State Bar Op. 708 (1998), citing South Carolina State Bar Op. 94-27