Can a Washington lawyer pay an annual fee to be listed in a for-profit online and telephone legal directory that lets the public search by location and practice area?

Plain-English summary

The inquiry concerned a for-profit publisher's online and telephone-accessible legal directory that helps the public identify and contact local legal-service providers and lets attorneys list basic contact information. Users search by zip code and/or practice area; matching attorneys appear in random order; the user chooses whom to contact without publisher assistance. The publisher provides no qualitative information, makes no recommendations, and does not endorse listed attorneys. Listing criteria are detailed: at least three years' experience, current practice areas only, good standing, minimum malpractice coverage, a written fee agreement for directory-referred clients, no charging directory clients more than other clients, and an annual update. Attorneys pay a fixed annual listing fee ($500 or $1,000 depending on area population); the publisher and attorneys do not share any legal fees; and attorneys may not pay a per-referral fee or claim the publisher's endorsement.

The committee responded that, provided the fee paid by an attorney for a listing is reasonable in amount and not a disguise for indirectly sharing fees with a nonlawyer for-profit entity, advertising through the online directory under the described restrictions is consistent with and permissible under RPC 7.2 and does not violate RPC 7.1. It found the situation somewhat analogous to advertising in the yellow pages of a telephone directory, except that the listing requirements are more restrictive and the information provided to users is more limited and therefore less susceptible to misleading or deceptive content.

In practice

Under this opinion, and under the advertising rules as they stood in 2006, the two conditions the committee identified are a reasonable listing fee and the absence of disguised fee-sharing. The opinion holds that participating in the described directory is permissible under RPC 7.2 and does not violate RPC 7.1, treating a fixed annual listing fee as advertising rather than payment for a recommendation, so long as the fee is reasonable and not a cover for sharing legal fees with the for-profit publisher. The committee's analogy to yellow-pages advertising frames the directory as an advertising medium, with the additional listing criteria and limited information reducing the risk of misleading content. Washington restructured RPC 7.1 through 7.5 in a comprehensive 2006 revision, so current numbering should be checked.

Common questions

Q: Can a lawyer pay to be listed in a for-profit online legal directory?

A: Yes, as described. The committee concluded that participation is permissible under RPC 7.2 if the listing fee is reasonable and not a disguise for indirectly sharing fees with the for-profit publisher.

Q: Does paying a directory listing fee count as paying for a referral?

A: Not as structured here. The committee treated the fixed annual listing fee as advertising, analogous to a yellow-pages listing, rather than a per-referral payment (which the directory prohibited).

Q: What keeps the directory from being misleading under RPC 7.1?

A: The committee noted the limited information provided to users (no qualitative comparisons or recommendations) and the restrictive listing criteria made the listing less susceptible to misleading or deceptive content.

Q: What conditions matter most?

A: That the listing fee be reasonable in amount and not a disguise for indirectly sharing legal fees with the nonlawyer for-profit entity.

Background and rules framework

The opinion interprets Washington RPC 7.2 (advertising and paying for recommendations; the counterpart to Model Rule 7.2) and RPC 7.1 (false or misleading communications; the counterpart to Model Rule 7.1). It applies these rules to a for-profit online and telephone directory, distinguishing a reasonable advertising listing fee from a disguised arrangement to share legal fees with a nonlawyer.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.2 / Washington RPC 7.2 (advertising; paying for recommendations; reasonable advertising costs)
• Model Rule 7.1 / Washington RPC 7.1 (false or misleading communications)

See also

• WSBA Ethics Op. 2116: A Bankruptcy Referral Program
• WSBA Ethics Op. 2123: Joining a Networking Group
• WA Ethics Op. 2139: A Discount Coupon for Legal Work

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1577

Original opinion text

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

Advisory Opinion: 2138
Year Issued: 2006
RPC(s): RPC 7.1, 7.2
Subject: Attorney participation in on-line and telephone accessible legal directory

QUESTION PRESENTED: Is attorney participation in an online and telephone accessible legal directory published by a for-profit company permissible?

FACTS: The publisher is interested in issuing an online legal directory (the “Directory”) that both helps the general public to identify and contact providers of legal services in their local area, and provides attorneys an opportunity to identify themselves and provide basic contact information to the general public through a web-based and telephone accessed directory. If an attorney would like to be listed in the Directory, the attorney must complete and submit a general information form obtained online or from the publisher. Upon submission of the form, the publisher will send the attorney an application. Upon receipt of the application and fee, and following determination by the publisher that the listing criteria are met, the publisher will list the attorney in the Directory. The user of the Directory will access it via the website or 24-hour telephone service. The user will have the option to enter either a zip code and/or a practice area to locate an attorney. The attorneys that are identified in the search will appear on the computer screen or be identified over the telephone in random order. The user chooses which attorney he or she wishes to contact without any assistance from the publisher. Customer service is available for the limited purpose of assistance with the technical aspects of using the Directory or to provide additional information related to the Directory itself. The publisher will not provide qualitative information about the attorneys listed in the Directory, answer legal questions, make recommendations or give legal or other advice. To be listed in the Directory, the attorney must have at least three years of legal experience; list only their current areas of practice; be admitted to the bar of the State in which they are practicing, and remain in good standing in all courts to which they are admitted throughout the period of time during which they are listed in the Directory; carry minimum levels of malpractice insurance ($100,000/claim, $300,000/aggregate); provide each client who identifies the attorney through use of the Directory with a written fee agreement before beginning any legal work for the client; only identify the locations in which the attorney will perform the work; be responsible for the content of his or her listing in the Directory; exercise independent professional judgment in rendering legal services; and not charge more for legal services provided to clients who use the Directory then would be charged to the other clients who are not users of the Directory. The attorney will be required to submit an annual update to the publisher. Users of the Directory will not pay any fee to the publisher for such use. The Directory will not be interactive, no information about a user’s legal issues will be sought or obtained by the publisher, the publisher will not engage in any solicitation of prospective clients, and users of the Directory will be solely responsible for selecting which attorney to engage. Users will be able to search for a listed attorney by geographic location and/or area of practice, although all attorneys that are identified in response to a search will be listed in random order and the random order will be different for each new search. Attorneys who are listed in the Directory will pay a fixed annual listing fee. The inquirer has advised that the fee will be $500 if the area in which the attorney practices has a population of less than 100,000 and $1,000 if greater. The publisher and listed attorneys will not share any legal fees earned by the listed attorney. Neither the publisher nor its affiliates will endorse or recommend any listed attorney, and inclusion in the Directory does not constitute endorsement or recommendation by the publisher or its affiliates. The Directory will include only the attorney’s name, address, contact information, the languages the attorney speaks fluently and areas of practice (with appropriate disclaimers, as necessary). At no time will the publisher compare listed attorneys against one another or against attorneys who are not listed in the Directory. The publisher will not be responsible to determine whether a Directory attorney is qualified to handle a particular case. The publisher will retain the right to remove any attorneys from the Directory, with or without cause, although attorneys who are suspended or disbarred by a state bar association will be removed immediately following notification or discovery of such event by the publisher. If an attorney does not comply with the publisher’s annual credentialing request for malpractice insurance updates, the publisher will remove him or her from the Directory. The publisher also will require that all Directory attorneys provide (for at least one year before the amounts may be revised), the services at the following discounted rates: 30 minute free consultation by person or by telephone; simple will for a single person $75; simple wills for a married couple $100; financial power of attorney $35; health care power of attorney and living will $35; and 20% discount off the attorney’s usual and customary hourly rate. The attorneys will not be permitted or required to identify themselves as a specialist in the particular area of practice, list themselves in any location in which they or their law practice do not have an office, advertise or otherwise claim they are endorsed by the publisher or its affiliates, or pay the publisher a per-referral fee.

RESPONSE: Provided that the fee paid by an attorney for a listing in the Directory is reasonable in amount and not a disguise for indirectly sharing fees with a nonlawyer for-profit entity, advertising through the online Directory under the restrictions described above is consistent with, and permissible under, RPC 7.2, and does not violate RPC 7.1 The situation is somewhat analogous to advertising in the yellow pages of a telephone Directory, except the requirements for listing are more restrictive, and the information provided to a user of the Directory is more limited and therefore less susceptible to information in the advertisement that might be misleading or deceptive.