CBA Record February-March 2019

LEGAL ETHICS

John Levin’s Ethics columns, which are published in each CBA Record, are now in-

dexed and available online. For more, go to http://johnlevin.info/ legalethics/.

BY JOHN LEVIN Paying for Online Referrals– Recent Recommendations

I llinois currently interprets Rules of Pro- fessional Responsibility 1.5, 5.4 and 7.2 to permit paying the charges for straight- forward advertising, but prohibits paying anything to a person for “recommending” the lawyer except to “a legal service plan or a not-for-profit lawyer referral service.” Sharing a fee with a non-lawyer is also prohibited, though it has been interpreted as permissible if paid to a bar association or not-for-profit lawyer referral service. This column recently referenced studies by the Chicago Bar Foundation and the Illinois ARDC suggesting that Illinois lawyers be ethically permitted to compensate for-profit internet services used to match the lawyer with potential clients by paying the service a portion of the fees collected. The underlying societal problem addressed by these studies is that there is a vast unmet need for legal services among the middle class and the poor. To put the problem in perspective, imagine you become ill and need to find a doctor. To a significant extent you will likely lack sufficient knowledge to make an informed decision: is this the right doctor, is he or she knowledgeable, are the recommended tests and the treatment appropriate? Assume you are uninsured. You will also face the well-documented lack of transparency on the cost of medical care. All you know for sure is that the total cost will be more than you want to or can pay. John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.

ETHICS QUESTIONS? The CBA’s Professional Responsibility Commit-

Now imagine you are a layperson living paycheck to paycheck and you get a legal demand letter or a request that you sign a new 50-page loan agreement. If you want to see a lawyer, you face the same level of ignorance in the example with the doctor. So the most likely decision is to do nothing and wait to see what happens–resulting in an unmet legal need and less business for the legal community. Middle alternatives also exist–asking a friend for a reference or self-help through internet research. According to the Pew Research Center: “[m]ore people turned to the internet than any other source of infor- mation and support, including experts, family members, government agencies, or libraries.” Pew also determined that 93 million Americans used the internet for research into health-related issues. It seems obvious that people would also use the internet to research a legal issue or find a lawyer appropriate to their problem. The question is whether the rules of profes- sional conduct will let them. The default response of most jurisdictions is that of Illinois’ current interpretation of the Rules–paying for advertising is OK, using bar association or not-for-profit referral services is OK, but using for-profit referral services and paying a portion of the client’s fee for the services is not OK. The suggestions made in the ARDC and Bar Foundation studies, as well as by the ISBA, the ABA, and many other states and bar associations, is that online, for- profit matching websites be permitted to be compensated by a portion of the lawyer’s fees if the sites register with the state in which they provide services and meet appropriate ethical standards.

tee can help. Submit hypothetical questions to

Loretta Wells, CBA Government Affairs Direc-

tor, by fax 312/554-2054 or e-mail lwells@

chicagobar.org.

The standards the referral service must meet include: (a) being open to all qualified lawyers in the jurisdiction, (b) not engaging in the practice of law or interfering with the practices of the participating lawyers, (c) complying with the ethical rules of the jurisdiction, and (d) keeping appropriate records. If a lawyer uses a referral service registered with the jurisdiction, the lawyer may pay a portion of his or her fee as com- pensation, though the total fee would still have to comply with the reasonableness requirement of Rule 1.5 Given our complex legal world and the unmet need for representation by so many people, it only seems reasonable that the restrictions on internet research be reduced as much as possible while being consistent with the protection of the public. SMALL FIRM RESOURCES One-stop shopping for resources on staring your own firm, marketing, business networking, law office technology training, low cost office man- agement consulting, and savings on insurance andbusiness expenses. Find the Portal under the Resources tab at www.chicagobar.org.

46 FEBRUARY/MARCH 2019