Kevin Quinlan, law firm marketing expert and president of legal marketing agency Cepac, weighs in on the controversy involving the listing of attorneys on free legal consultation websites and whether their performance based pay model violates the rules of professional conduct or are just a novel use of the Internet as an advertising medium much like a pay-per-click ad.

In what could be a major challenge to law firm marketing and the belief that the Internet is merely another advertising medium to which existing, and in some cases archaic, ethics rules apply, an ethics complaint involving free legal consultation websites has been filed in 47 states by complainants who believe that the Internet requires a whole new set of rules. It is their contention that in spite of the fact that these websites claim to have been fashioned on a performance based pay-per-click model; they are in fact paying a fee for a referral, a violation of the rules of professional conduct. The first claim to be reviewed will be in the state of Connecticut with hearings scheduled for November.

The majority of the state bar associations follow the same guidelines that do not allow a lawyer to “give anything of value to a person recommending the lawyer’s services,” the only exception being that the rule permits lawyers to “pay the reasonable cost of advertising.”

And there you have the bone of contention-advertising or referral service? When a web user clicks on a pay-per-click ad and is redirected to a firm’s website, that is considered a pay-for-performance ad and is allowed. What complicates matters is the fact that these referral sites offer exclusivity to individual law firms based on their location.

If these websites listed an array of attorneys in each zip code or municipality and provided the ability to click through to the respective website of any of those listed, that would not be a problem. But the very notion of selling exclusive territorial listings to a law firm and charging the firm when a prospect clicks through for the free consultation is, to some, nothing short of fee sharing.

On the pro side, the argument is that these websites are a derivative of the pay-per-click advertising model, that the arrangement is cooperative advertising permitted under professional rules and the fees are for the cost of licensing the website plus marketing costs. The opposing view is that offering a single choice to consumers based on an exclusive agreement is strictly a clever way to skirt the rules. It often may  not be the best possible attorney for the consumer.

Regardless of which side of the argument to which you subscribe, this decision which may be the largest legal ethics complaint in history, will have a major impact on this type of legal advertising but may also be the first step down the slippery slope towards conforming historical ethics rules with the new technology of the Internet. It will be interesting to see how far the various states will go towards regulating other Internet marketing strategies for attorneys.  What impact may there be on pay-per-click, search engine optimization or in the creation and use of web videos for law firm websites and  social media. It might be a bumpy ride.