CHAPTER 5 - 5-9 PAID REFERRALS OR RECOMMENDATIONS

• Jurisdiction: United States

5-9 Paid Referrals or Recommendations

Lawyers may not give anything of value to another for recommending the lawyer's services.¹⁵⁶ Paying for, or receiving payment for recommending the services of a lawyer is a felony.¹⁵⁷ Notwithstanding these prohibitions, a lawyer may pay the reasonable costs of cooperative advertising,¹⁵⁸ charges related to a not-for-profit or qualified lawyer referral service,¹⁵⁹ or related to paying for the purchase of a law firm.¹⁶⁰ A lawyer may share the costs of cooperative advertising with nonlawyers.¹⁶¹ A lawyer may participate in a prepaid legal services program, even though the advertising is paid for by another.¹⁶² A lawyer may advertise jointly with nonlawyers as long as it is clear that the professional are not legally associated and the ad contains language sufficient to prevent confusion.¹⁶³

A lawyer may participate in an Internet-based "matching" program wherein the lawyer pays a fee to be matched with or have his name provided to consumers who seek legal representation in a particular field.¹⁶⁴

A lawyer may pay a lead generator, including Internet-based lead services, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (fee splitting) and 5.4 (professional independence of the lawyer), and the lead generator does not state, imply, or create a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed the person's legal problems when determining which lawyer should get the referral.¹⁶⁵

The seminal Connecticut case involving lawyer matching services was Zelotes v. Rousseau.¹⁶⁶ In Zelotes, a lawyer filed grievances against five Connecticut lawyers and against lawyers in 47 other states related to their participation in a legal matching and referral program called Total Attorneys or Total Bankruptcy. After a contentious hearing, the Grievance Committee dismissed the case, holding that though the matter was a close one and might have had a different result "on slightly different facts," because the program was essentially cooperative advertising and not lead-selling, there was no violation of Rule 7.2(c).¹⁶⁷ After the Connecticut decision, all of the complaints in other states were similarly disposed of.

The 2019 changes to Rule 7.2 clarified that lead selling and buying is permitted as long as it is in compliance with the rules. Recommending a lawyer for profit is still a felony...