OptionsOptions Outsource EnforcementOutsource Enforcement

To Attorney Discipline for Ethics To Attorney Discipline for Ethics ViolationsViolations To State AGs for Consumer FraudTo State AGs for Consumer Fraud To Prosecuting Attorneys for UPL To Prosecuting Attorneys for UPL

prosecutionprosecution

• Adopt and Advance the ABA Best Adopt and Advance the ABA Best Practice Practice GuidelinesGuidelines

OutsourcingOutsourcing

Lawyers and only lawyers are Lawyers and only lawyers are subject to disciplinary enforcementsubject to disciplinary enforcement

Lawyers may or may not be subject Lawyers may or may not be subject to consumer fraud, but all other to consumer fraud, but all other individuals and entities areindividuals and entities are

Both lawyers and all entities are Both lawyers and all entities are subject to UPLsubject to UPL

Ethics Rules Impute Acts of Ethics Rules Impute Acts of Agents to LawyersAgents to Lawyers

Sometimes by Specific State RulesSometimes by Specific State Rules FL Rule 4-7.10(b) lawyer who accepts FL Rule 4-7.10(b) lawyer who accepts

referrals from a lawyer referral service is referrals from a lawyer referral service is responsible for ensuring that any advertisements responsible for ensuring that any advertisements used by the service comply with the requirements used by the service comply with the requirements of the Rules.of the Rules.

TX Rule 7.4(p) lawyer who advertises in the TX Rule 7.4(p) lawyer who advertises in the public media as part of an advertising cooperative public media as part of an advertising cooperative or venture shall be individually responsible for:or venture shall be individually responsible for:

(1) ensuring that each advertisement does not violate (1) ensuring that each advertisement does not violate this Rule.this Rule.

Usually through a Catch-All RuleUsually through a Catch-All Rule

ABA Model Rule 8.4(a) it is a ABA Model Rule 8.4(a) it is a professional misconduct to violate the professional misconduct to violate the rules through the acts of another.rules through the acts of another.

The Ethics Rules Apply to the The Ethics Rules Apply to the Internet – whether or not they Internet – whether or not they say sosay so

Potential BreachesPotential Breaches Rule 7.5(a)Rule 7.5(a) A trade name may be used by a A trade name may be used by a

lawyer in private practice if it does not lawyer in private practice if it does not imply a connection with a public or imply a connection with a public or charitable legal services organization...charitable legal services organization...

Rule 7.1Rule 7.1 A Lawyer shall not bake a false or A Lawyer shall not bake a false or misleading communication about the lawyer misleading communication about the lawyer or the lawyer’s services...or the lawyer’s services...

Most states prohibit the creation of Most states prohibit the creation of “unjustified expectations” and “unjustified expectations” and “unsubstantiated comparisons”“unsubstantiated comparisons”

Rule 7.2(b)Rule 7.2(b) A lawyer shall not give A lawyer shall not give anything of value for the recommendation anything of value for the recommendation of the lawyer’s services, except for the of the lawyer’s services, except for the reasonable costs of advertising or the usual reasonable costs of advertising or the usual changes of a state-qualified or non-profit changes of a state-qualified or non-profit lawyer referral service or legal service lawyer referral service or legal service plan.plan.

DisclaimersDisclaimers Limits on dramatizationsLimits on dramatizations Limits on stock photosLimits on stock photos Retention/Filing/Screening requirementsRetention/Filing/Screening requirements

Rule 8.4(c) and (d) Rule 8.4(c) and (d) prohibit deception or prohibit deception or misrepresentation and conduct detrimental misrepresentation and conduct detrimental to the legal profession.to the legal profession.

Possible OutcomesPossible Outcomes

Cease and desist letterCease and desist letter ““Ask Gary” SanctionsAsk Gary” Sanctions

It may be hard to tell who is It may be hard to tell who is involved...involved...

Sometimes lawyers are Sometimes lawyers are listed without participating listed without participating

or even knowing it...or even knowing it...

Avoid Pretexting – Leave Avoid Pretexting – Leave the investigation to the Prosthe investigation to the Pros

A Second Option – ABA Best A Second Option – ABA Best Practice GuidelinesPractice Guidelines

At At www.abanet.org/legalservices/delivewww.abanet.org/legalservices/deliveryry

QuestionsQuestions