Lead segmentation for Legal Services

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[Music] in this video we're going to be talking about the next section of the rules specifically communications about legal services this section of the rules makes up four to ten percent of your mpre exam so the first rule i want to talk about is advertising and other public communications about legal services you'll notice that the outline first gives a little information about the history of this point this information is helpful to give us some context it explains that up until the late 1970s lawyers were prohibited from advertising now lawyer advertisements are considered protected commercial speech so this means while it's protected speech it does not get as much protection as other forms of speech but it is protected which means lawyers can now advertise assuming that they're following other laws and these ethical requirements so the government can place restrictions or regulations upon commercial speech this means the government can regulate commercial speech so long as they have a substantial governmental interest and the regulation directly advances the interest in question and the regulation is narrowly tailored to meet that interest so now the lawyers can advertise as we've just learned these rules put parameters on what we as lawyers can do with our advertisements and our public communications to people the first rule that i want to talk about is what we can write in our ads or our advertisements the rule says that lawyers can communicate information about their services through any media what we can say is information concerning the lawyer's name or their law firm their address websites emails phone numbers it can contain the kinds of services that the lawyer can undertake for the public the basis on which the lawyer's fee will be determined including prices for specific types of services and payment and credit arrangements it can outline the lawyer's foreign language ability if that's applicable and names and references of clients that are regularly represented so long as the lawyer has previously gotten consent from those clients to use their names and lawyers are also allowed to include any other information that would invite the attention of those seeking legal assistance so let's stop there we now know the lawyers can advertise and they can advertise through any means billboards radio tv newspapers magazines all of these methods are permissible and when it comes to what lawyers are allowed to say in their advertisements i want you to think of this from a common sense perspective they're allowed to provide information that would help the public contact them or would invite the public or people needing legal assistance to contact the lawyer the next rule i want to talk about says that a lawyer shall not give anything of value to a person for recommending the lawyer's services so again to stop there pursuant to these rules lawyers cannot provide referral fees i know some jurisdictions and specific state rules allow lawyers to pay out referral fees but the aba model rules do not allow for that the rule then provides some exceptions and the way i like to think of this rule is that it was interpreted very literally but then we realized it didn't make a ton of sense if we kept that interpretation as literal as we had it so we had to create some exceptions thus the first exception is that a lawyer may pay the reasonable cost of advertisements or communications that are permitted by this rule so to stop there the rule directly prior to this says that we are allowed to advertise as lawyers this is a protected form of speech but then the rule thereafter says you can't ping anyone to advertise so that doesn't really make much sense thus we carved out an exception that says you can we understand that advertising costs money for instance if you have a commercial you have to pay to have it aired so you're allowed to pay those costs and fees that are associated with advertising under these rules turning to the example in the outline it says lawyers may pay for the costs of print directory listings online directory listings newspaper ads television and radio airtime domain name registration sponsorship fees internet-based advertisements and group advertising lawyers can also pay people like publicists public relations personnel business development staff television or radio station employees or spokespersons and website designers thus you can pay these people to help you advertise your services the next exception says that you are allowed to pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service everyone may not be familiar with what this is so i'll give you a quick example many jurisdictions have a lawyer referral hotline that the state bar advertises usually it's a 1 800 number and what the public can do is they can call that phone number and they can speak to the operator and explain the type of lawyer that they're looking for and where they're located geographically speaking and then the operator will provide that person with a list of attorney names and their contact information that way the caller can turn around and contact whichever lawyer on that list they want and they can of course inquire about those lawyers legal services so getting back to the rule what this is saying is you are allowed as a lawyer to participate in this type of arrangement and you're allowed to pay to participate to become part of it most lawyers have to pay to participate in these services and again that is completely permissible under the rule the theory behind it is that it's understood by the public when these types of arrangements are made to be consumer oriented they're supposed to be providing these unbiased referrals to lawyers with appropriate experience in the subject matter requested and afford other client protections such as complaint procedure or malpractice insurance requirements and consequently this rule only permits a lawyer to pay the usual charge of a not-for-profit or qualified lawyer referral service fees so because there are safety procedures or safety nets in place for the public a lawyer paying to participate in one of these types of activities is absolutely ethically permissible the other thing i want to point out is the note in your outline it states that lawyers can compensate non-lawyers for generating client leads as long as that non-lawyer does not recommend the lawyer services so there is no referral or improperly communicates with those potential clients this is a rather new update to our rule so to give you an example let's say there's a law firm that regularly represents businesses this business law firm could hire a company to generate client leads for them and they can then pay that company for those leads or the information provided getting back to the rule a lawyer shall not give anything of value to a person recommending the lawyer services except that a lawyer can pay for a law practice in ance with these rules we learned in a previous section of the rules that lawyers can sell and by law firms and portions of law firms or a practice so long as they're otherwise complying with the rules thus you can exchange money in this type of transaction ethically the next exception is that a lawyer can refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited by these rules that provide for the other person to refer clients or customers to the lawyer we call these reciprocal referral agreements these are permissible if they meet the following requirements these agreements cannot be exclusive so let's say lawyer a and lawyer b are going to refer clients to one another they can but they can't only be referring clients to one another because then that agreement becomes exclusive and it violates the rule the second requirement to have a proper reciprocal referral agreement is that the client has to be informed about the existence and the nature of this agreement so if you're going to refer your client to a specific chiropractor because of this reciprocal referral agreement then you need to tell your client that's why you're making this type of referral so they know this agreement exists between you and that other professional in question the third requirement is these reciprocal arrangements must not interfere with the lawyer's professional judgment as to making those referrals and providing legal services the idea here is you as the lawyer regardless of this agreement need to continue to work in your clients best interest you can't let one of these reciprocal referral agreements get in the way of doing what's best for your client so for instance if referring your client to a certain chiropractor is not in their best interest even though you have one of these reciprocal referral agreements in place then you shouldn't refer your client to that chiropractor because it's not in their best interest and you have to make sure that this type of agreement is not interfering with your professional judgment additionally for these reciprocal referral agreements to be proper under the rules they cannot be for an indefinite duration therefore they should be reviewed periodically to determine if they're still a good idea and if you're still in compliance with these rules and then the final section of this rule that we're discussing says that lawyers can give nominal gifts of appreciation that express their appreciation that are neither intended nor reasonably expected to be a form of compensation to someone who's recommended the lawyer services so to be clear here the rule goes out of its way to tell us that these gifts that a lawyer may provide to someone who's referred that lawyer or the lawyer's services are really supposed to be nominal and it cannot be the type of thing that's given to compensate the person making the referral so think of this as a gift one may give it a holiday or anything that would be appropriate under normal social hospitality rules for example bob a lawyer represented sam in a case sam was successful and very happy with the outcome so he referred his friend greg to bob bob the lawyer found out about this referral and decided to send sam some cookies this is permissible under the rules since the gift is nominal and it's simply expressing appreciation it cannot be construed as intended to be compensation for the referral the next rule we're going to discuss is solicitation first let's talk about the definition the rules have been clarified on this point which is nice so solicitor solicitation denotes communication intended by or on behalf of a lawyer or a law firm that's directed to a specific person that the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide or reasonably can be understood to provide as offering legal services for that matter so now that we know the definition let's review the rule the general rule states that a lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyers doing so is pecuniary gain so to stop there if you approach someone who just got into a car accident and ask them to hire you that's a violation of the rule now if there's a protest and you see someone get arrested and you firmly believe that their rights are being violated so you approach them and say that you'll represent them for free then this is not solicitation because you're not seeking to make any money off of them by virtue of the representation so getting back to the rule it says that you can solicit certain types of people without violating the rule the first person you can solicit is another lawyer the theory behind this is that a lawyer should understand these rules they know how operating a law firm works and they're not the type of person that might be harmed by this live person-to-person contact the next type of person you can solicit is someone that the lawyer has a family or close personal relationship or prior business or professional relationship with so let's stop there if you want to talk to your cousin and solicit them face to face because you know they're having a legal problem can you do that yes why because they're your family member or maybe one of your good friends is in need of some legal help and you want them to hire you you can contact them similarly if you've previously represented a client and you know that they're in need of legal services again you could permissively solicit them and then finally a lawyer is allowed to solicit someone who routinely uses for business purposes the type of legal services offered by the lawyer so to be clear as to this point if there's someone a lawyer does not have a prior relationship with but the lawyer knows that they're the type of business or the type of person that needs the services that the lawyer provides and frequented those types of services in the past again not with you or a particular lawyer but with another law firm or a different lawyer then they can be solicited as well so let's turn to our examples the first says that a lawyer sends his secretary to a funeral home to ask the father of an accident victim if he wanted to sue for wrongful death the lawyer has no pre-existing relationship with the father the lawyer here planned on charging the father a fee the lawyer is therefore subject to discipline why because the person being solicited was solicited live face-to-face contact to make money or peculiary gain and it's not the type of person that falls within the list of exceptions that can be solicited now turning to the second example if the lawyer plans on representing this father for free now there's not an ethical dilemma raised by this situation turning to the third example a person who routinely uses for business purposes the type of legal services offered by the lawyer are persons who routinely hire outside counsel to represent the entity entrepreneurs who regularly engage in business employment law or intellectual property lawyers small business proprietors who routinely hire lawyers for lease or contract issues and other people who routinely retain lawyers for business transactions or formations so again you could solicit these people and not be in trouble for that type of action i want to give you one more example before we move away from this rule but this example is not in your outline let's say that a lawyer lives next door to someone who was on a plane when it crashed many people survived but they were very badly injured by virtue of the plane crash the neighbor who was injured in this accident is part of an online community who offers support to one another due to this incident the neighbor tells the lawyer hey you should join our online community and you should let everyone know that you're a lawyer that helps accident victims maybe some of them would be interested in hiring you so the lawyer takes the neighbor's advice and joins this online community and makes a post in the chat room advertising his services is there a problem with the lawyer's actions here did the lawyers add amount to behavior that is a violation of the rule and the answer is no why because pursuant to these rules solicitation means live person-to-person contact so while technically this lawyer is attempting to drum up business he wants these people to hire him and then pay him for representation but because he posted this type of ad online that's not live person-to-person solicitation therefore what he did was okay and he did not commit any sort of ethical violation the next rule that i want to talk about is communications about a lawyer's services the rule states that communications about a lawyer's services cannot be false or misleading a lawyer shall not make a false or misleading communication about the lawyer or the lawyer services a communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading so let's stop here and reflect for a moment please note that this rule has the word or in it this means that sometimes a statement might be truthful but it's misleading and therefore it's a problem under this rule because your statements need to be truthful and not misleading to be in compliance with the rule turning to the examples in the outline the first one says that an advertisement truthfully reports a lawyer's achievement on behalf of clients or former clients may be misleading if it's presented so as to lead a reasonable person to form some sort of unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case so let's stop there i'm sure all of us have seen commercials where a lawyer has a client get on the screen and talk about how much money the lawyer won for them and that's okay as long as the lawyer is taking steps to not create some sort of unjustified expectation there needs to be some sort of communication that the outcome was very specific as to the client's facts and circumstances surrounding that case turning to the next example an unsubstantiated comparison of lawyer services or fees with the services or fees of other lawyers for instance if they say something like our firm wins 20 more cases than any other firm in the state they may be misleading if it's presented with such specificity that will lead a reasonable person to conclude that the comparison can in fact be substantiated the inclusion of an appropriate disclaimer or qualifying language can preclude the finding that the statement is likely to create that unjustifiable expectation or otherwise mislead the public so again having a disclaimer if you want to report your statistics is going to be very helpful to make sure that you are in compliance with this type of rule so that wraps up our discussion about this section of the rules [Music] [Music] you