Can a North Carolina law firm use a live chat support service on its website without violating the solicitation rules?

Plain-English summary

The inquiry describes live chat support on a firm website, where a "Click Here to Chat Live" button (sometimes a software-generated pop-up inviting "live help") connects a visitor to a live agent who runs through scripted screening questions, collects the facts and contact information, and emails a transcript to the firm. The question is whether using such services violates the Rules.

The opinion answers no. Rule 7.3(a) bars a lawyer from soliciting professional employment by in-person, live telephone, or real-time electronic contact, and the opinion agrees that an interactive typed conversation with a live agent is real-time electronic contact. But the prohibition reaches only lawyer-initiated contact, and in each scenario the website visitor makes the initial contact by choosing to visit the firm's site and clicking the button, indicating an interest in the content. The opinion also explains that the policy behind Rule 7.3, set out in Comment [1] (the risk that a trained advocate's private importuning will subject an overwhelmed layperson to undue influence, intimidation, and overreaching), is not present: the visitor can ignore the chat button or decline with a click.

The opinion notes the Philadelphia Bar Association reached a similar result for certain real-time electronic communications, allowing solicitation where the prospective client can "turn off" the soliciting lawyer and respond or not as he or she sees fit (Philadelphia Bar Ass'n Prof'l Guidance Comm., Op. 2010-6 (2010)).

Although permitted, the practice carries risks the firm must manage. The firm must ensure visitors are not misled into believing they are conversing with a lawyer when they are not: "operator" may be appropriate for a nonlawyer, but a label like "staff member" requires an affirmative disclaimer that the nonlawyer is not an attorney, and the agent must not give legal advice. The firm should also guard against an inadvertent lawyer-client relationship and be careful in obtaining information, because Rule 1.18 makes a person who discusses forming a relationship a prospective client whose information generally may not be used or revealed, and Rule 1.18(c) can bar representing a client with materially adverse interests in the same or a substantially related matter, which could require withdrawal.

In practice

Under the North Carolina rules as they stood at the time of the opinion, using a website live chat support service is permitted and is not solicitation barred by Rule 7.3(a), because that rule reaches only lawyer-initiated real-time contact and the visitor initiates the contact here. Per the opinion, the policy concerns behind Rule 7.3 (undue influence and intimidation) do not arise where the visitor can ignore or decline the chat.

Per the opinion, the firm must ensure visitors are not misled into thinking a nonlawyer agent is a lawyer (a "staff member" designation needs an affirmative disclaimer; "operator" may suffice for a nonlawyer), the agent must give no legal advice, and the firm must avoid an inadvertent lawyer-client relationship and be mindful that information from a prospective client can create a Rule 1.18(c) conflict requiring withdrawal.

Common questions

Q: Is a website live chat considered solicitation under Rule 7.3?

A: The opinion treats the typed conversation as real-time electronic contact, but concludes Rule 7.3(a) bars only lawyer-initiated contact; because the visitor initiates the chat, it is not prohibited solicitation.

Q: Why don't Rule 7.3's policy concerns apply to live chat?

A: Per Comment [1], the rule guards against a trained advocate's importuning subjecting an overwhelmed layperson to undue influence or intimidation. The opinion concludes those concerns are absent because the visitor can ignore the chat button or decline with a click.

Q: Do we have to disclose that the chat agent is not a lawyer?

A: Yes, if the agent is a nonlawyer. The opinion states the firm must not let visitors believe they are talking to a lawyer; a "staff member" label requires an affirmative disclaimer, and the agent must not give legal advice.

Q: What conflict risk does live chat create?

A: Rule 1.18 makes a chatting visitor a prospective client. The opinion warns that acquiring significantly harmful information could, under Rule 1.18(c), create a conflict with a current client that requires withdrawal.

Background and rules framework

The opinion applies North Carolina Rule 7.3 (solicitation of clients, the analogue of Model Rule 7.3), specifically Rule 7.3(a) on real-time electronic contact and its Comment [1] policy rationale, together with Rule 1.18 (duties to a prospective client), including Rule 1.18(c) on conflicts arising from information received from a prospective client.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / NC Rule 7.3(a) and Comment [1] (solicitation by real-time electronic contact; policy rationale)
• MR 1.18 / NC Rule 1.18, Rule 1.18(c) (duties to a prospective client; conflicts from prospective-client information)

Other opinions cited:

• Philadelphia Bar Ass'n Prof'l Guidance Comm., Op. 2010-6 (2010): Rule 7.3 does not bar real-time electronic solicitation where the recipient can "turn off" the soliciting lawyer and respond or not as he or she sees fit.

See also

• ABA Formal Op. 501: Solicitation Under Rule 7.3
• ABA Formal Op. 10-457: Lawyer Websites

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2011-formal-ethics-opinion-8/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

A law firm would like to utilize a live chat support service on its website. Typically, such a service requires the law firm to download a software program to the firm website. After the software is downloaded, a “button” is displayed on the website which reads something like “Click Here to Chat Live.” The button is often accompanied by a picture of a person with a headset. Once a visitor clicks on the button to request a live chat, the visitor will be able to have a typed out conversation in real-time with an agent identified as perhaps a “law firm staff member” or an “operator.” The agent will guide the visitor through a series of screening questions through the use of a script. Typically, the agent will learn about the facts of the potential case. The agent will also obtain contact information for the visitor. The agent then emails a transcript of the “chat” to the law firm. In some instances, the law firm pays only for the transcripts of “chats” in which the visitor provides a way for the law firm to contact him or her.

Depending on the software program purchased, in addition to the live chat “button” being displayed on the website, a pop-up window may also appear on the screen specifically asking visitors if they would like “live help.” The window may contain a picture of a person with a headset and reads something like, “Hi, you may just be browsing but we are here to answer your questions. Please click ‘yes’ for live help.” The pop-up window is software-generated. It is only after the visitor clicks on the button that the live agent is engaged.

In another form of the live chat support service, the “button” and pop-up window showing a picture of a person with a headset is displayed on the website and a voice says something like, “Hi, we are here to answer your questions. Please click ‘yes’ for live help.” These statements are presumably software-generated. It is only after the visitor clicks on the “yes” button that the live agent is engaged.

Is the utilization of these types of live chat support services a violation of the Rules of Professional Conduct?

Opinion:

No. Rule 7.3(a) provides that a lawyer shall not by “in-person, live telephone, or real-time electronic contact” solicit professional employment from a potential client unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. Instant messaging, chat rooms, and other similar types of conversational computer-accessed communication are considered to be real-time or interactive communication. The interactive typed conversation with a live agent provided by the live chat support service described above constitutes a real-time electronic contact.

It is important to note that the prohibition in Rule 7.3(a) applies only to lawyer-initiated contact. Rule 7.3 does not prohibit real-time electronic contact that is initiated by a potential client. In each of the instances described above, the website visitor has made the initial contact with the firm. The visitor has chosen to visit the law firm’s website, indicating that they have some interest in the website’s content. It is appropriate at this juncture for the law firm to offer the website visitor live assistance.

In addition to the fact that the potential client has initiated the contact with the law firm, the circumstances surrounding this type of real-time electronic contact do not trigger the concerns necessitating the prohibition set out in Rule 7.3. Comment [1] to Rule 7.3 explains the policy considerations behind the prohibition:

There is a potential for abuse inherent in direct in-person, live telephone, or real-time electronic contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

The use of a live chat support service does not subject the website visitor to undue influence or intimidation. The visitor has the ability to ignore the live chat button or to indicate with a click that he or she does not wish to participate in a live chat session.

The Philadelphia Bar Association recently issued an opinion that allows certain real-time electronic communications, including communications through blogs, chat rooms, and other social media. Philadelphia Bar Ass’n Prof’l. Guidance Comm., Op. 2010-6 (2010). The opinion states that Rule 7.3 does not bar the use of social media for solicitation where a prospective client to whom the lawyer’s communication is directed has the ability “to ‘turn off’ the soliciting lawyer and respond or not as he or she sees fit.” The Philadelphia Bar Association opined that “with the increasing sophistication and ubiquity of social media, it has become readily apparent to everyone that they need not respond instantaneously to electronic overtures, and that everyone realizes that—like targeted mail—emails, blogs, and chat room comments can be readily ignored, or not, as the recipient wishes.”

Although the use of this type of technology is permissible, the practice is not without its risks, and a law firm utilizing this service must exercise certain precautions. The law firm must ensure that visitors who elect to participate in a live chat session are not misled to believe that they are conversing with a lawyer if such is not the case. While the use of the term “operator” seems appropriate for a nonlawyer, a designation such as “staff member,” or something similar, would require an affirmative disclaimer that a nonlawyer staff member is not an attorney. The law firm must ensure that the nonlawyer agent does not give any legal advice.

The law firm should be wary of creating an “inadvertent” lawyer-client relationship. In addition, the law firm should exercise care in obtaining information from potential clients and be mindful of the potential consequences/duties resulting from the electronic communications. Rule 1.18 provides that a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client and that, even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client may generally not use or reveal information learned in the consultation. Furthermore, Rule 1.18(c) prohibits a lawyer from representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Therefore, acquiring information from a prospective client via the live chat service could create a conflict of interest with a current client that would require withdrawal.